Steal This Song

SAN FRANCISCO (07/05/2000) - Tonight's the night. After months of indecision you've decided to offer your hand in matrimony to that special someone. You've purchased the ring and chosen the ideal spot to pop the question -- the only remaining detail is selecting the perfect song to accompany your proposal.

After scanning your record collection for Chad and Jeremy's The Ark -- "Painted Dayglow Smile" is "your song" -- you remember you loaned the record to your brother-in-law last week. What to do?

Sidebar: How Napster Works: The Pirate's ToolboxNapster Inc., the popular file-sharing service for swapping MP3s online, operates with the help of a centralized server that maintains a database of all the MP3 files that users with Napster clients make available to other Napster users. Here's how it works:

1. Long John Silver installs a copy of a Napster client -- Macster is one such for Macintosh, although Napster is working on a Mac client as we go to press -- and establishes a free account with Napster.

2. Although Macster doesn't currently support this capability, a PC-packing Long John can place MP3 files he's willing to share with others in a particular folder. When John logs on to the Napster server, the server software adds a list of these files to its database.

3. When John initiates a search -- based on song title or artist -- Napster's server scans the database and returns a list of computers where a song can be found.

4. Once John picks a computer to download the song from, a network link is established between his computer and the one that contains the song he's after, and the song is copied from the remote computer to John's hard drive.

5. With the MP3 file secure on John's hard drive, he can then play it with an MP3 player such as SoundJam MP, Audion, or QuickTime.

6. If John wishes to take his tunes with him when he travels the high seas, he can download them to a portable MP3 player such as the Rio 500, or convert the files into AIFF files and then turn them into audio CDs with the help of a CD-R writer.

Simply fire up your Mac, launch a copy of a program called Macster, type Chad and Jeremy into the Artist search field, and cross your fingers. Sure enough, you discover that "Painted Dayglow Smile" is available for download from three different computers. With a double-click, the song is delivered to your Mac in a matter of minutes -- at no cost and just in time for its strains to be heard as your beloved crosses the threshold.

As romantic as this scenario seems, there's one minor catch: your actions may be illegal -- illegal enough, in fact, that if the recording industry has its way, Internet services such as Napster ( that allow people to swap songs online could be shut down in short order. (See the sidebar "The Long Arm of the (Copyright) Law" for an analysis of the legal issues involved.)This seemingly innocent act of trading music online has sparked a remarkable controversy that has pitted fans against bands, artists against the recording industry, and the recording industry against an Internet start-up. Yet if this trend continues, it's likely to change the way artists and their representatives make money and how you lay your hands on everything from music to software to movies.

The Way We Were

Most people still get their hands on music the old-fashioned way -- by trooping down to their local retailer and buying it. Web-savvy folks might purchase CDs online, but it's fundamentally the same concept -- paying for the right to use tangible media. But a number of factors are conspiring to change this model.

Means to an End:The first, and most notorious, factor is programs such as Napster and Gnutella ( -- programs that allow you to download MP3 files from other people's hard drives without paying a penny to the artist or entertainment industry. With a Napster client such as Macster (or the Mac-compatible Furi client for Gnutella) and a broadband Internet connection, Mac users can download an album's worth of MP3 files in less than an hour. This leads us to the second factor: high-speed Internet access.

Fast Enough for You:Downloading a file of a few megabytes used to take hours.

With broadband connections such as DSL and cable modem -- featuring download rates more than ten times faster than those of 56-Kbps modems -- becoming more commonplace, however, you can now download multimegabyte media files in just minutes.

Cut Down to Size:But even with high-speed Internet access, the trend to download large digital media files would be stymied without file compression.

MP3, the most widespread audio-compression technology today, allows you to compact a 3-minute, 31MB audio file into a 3MB song while maintaining a high level of quality.

Holding On:Although the recording industry would likely be loath to admit it, its reluctance to embrace online access to the material it controls plays a significant part in this digital drama. Even though most people would agree that artists and their representatives should be compensated for their work, many feel, for example, that there has to be a better way to obtain one song than paying as much as $18 to purchase an entire album on CD -- prices which, according to the FTC, are artificially inflated. Were media more easily obtained online -- and at a lower price -- people might be more motivated to pay for content instead of pirating it.

Sidebar: The Long Arm of the (Copyright) LawThe web-site notices go something like this: "We respect copyright law and expect our users to do the same. You agree you will not use our service to infringe intellectual property rights of others." The chance that the average Web user knows whether she's infringing someone's copyright, however, is another story -- it's a complex balancing act, especially when a site leads her directly to copyrighted work to download.

What Is Copyright, Anyway?:The federal Copyright Act is the primary copyright law in the United States. Under most circumstances, copyright owners -- the musicians or songwriters who created something or the record companies and music publishers that bought the rights from them -- may prevent others from copying, distributing, and displaying or performing (playing) their work for the public.

What does this mean to you? When you download music or offer your MP3 files for others to copy over the Internet (through Napster, for example), you're copying and distributing songs (owned by the writers or music publishers) and sound recordings (owned by the record companies) -- that's two copyrighted works for each recording. If you don't have permission from the true copyright owners, you're probably breaking the law. If they want to come after you, start counting your money -- legal fees and damages could cost you more than $150,000. (Most penalties are civil and not criminal, so there's not much fear of being thrown in jail.)Watch Your Step:In general, you'll be safe downloading from a site that owns the music -- such as a record company's or musicians' site that offers only their own recordings -- or buying from big online retailers such as Amazon and CDNow. When sites or services such as Napster offer other artists' music, be wary.

Although sharing music with friends is considered to be personal use and is legal, sharing it with the public through big file-swapping sites means you're probably infringing copyright. If you draw attention to yourself by sharing thousands of files, copyright owners may come after you. You leave digital fingerprints on the Internet, namely IP and e-mail addresses, and your actions can be traced. But so far, the representatives of copyright holders, such as the RIAA, have targeted the people who make the tools that let you swap MP3s, rather than the people who use those tools.

Fair Game:There are a few legal routes for online service providers such as search engines and portal sites to take. Most avoid prosecution from copyright infringement under the provisions of the Digital Millennium Copyright Act of 1998 (DMCA).

Online service providers are allowed, by this law, to refer or link users to copyrighted work or simply store it for users (such as hosting Web sites with MP3 files), among other things -- as long as they meet certain conditions. They can do so -- and this is critical -- without fear of copyright infringement.

The DMCA generally defines online service providers as those who provide online services or Internet access. But to protect themselves from lawsuits, they have to follow rules such as terminating accounts of subscribers who are repeat copy-right infringers.

Avoid Temptation:Those who enjoy the challenge of coming up with new technology to get around online copyright protections should be careful. The DMCA prohibits anyone, including service providers, from interfering with the technology used to identify or protect copyrighted works (digital watermarks, for example).

What does this mean for Napster and similar technologies that may come later?

Their future is uncertain, but if people continue developing technologies and learn to work with copyright owners, the Internet will offer more quality music that costs much less than traditional CDs. Now that's innovation. -SUSAN P.


Is It Legal?

Most of the music available via Napster is illegally posted. But some bands (such as Phish, used in this example) allow fans to record their concerts and trade those recordings freely. This still doesn't make their albums fair game, however. Here's a quick look at what can be legal and illegal in a single Macster search.

While the ways, means, and motive are in place, they have little to do with the furor surrounding this subject. We know the technology works, but what we haven't agreed on is whether using it is legal or morally justifiable -- and if there's some middle ground that will satisfy everyone involved.

Whipping Post

Currently, Napster Inc., based in San Mateo, California, is the lightning rod for this controversy. Although an outfit called was the first to be taken to court for allegedly storing MP3 files illegally on its servers, Napster has generated the bulk of the press. Here's why:

It's in the Way That You Use It:As we stated, Napster created software that allowed people with a Napster client program -- Macster is one of the most popular for the Mac -- to download MP3s from another person's hard drive. (See the sidebar "How Napster Works: The Pirate's Toolbox" for more information.) You do this by launching the program, signing up for a free account, searching for an artist or song title by name -- then downloading files that match your search. PC users can designate a folder on their drive for MP3 files they want to share -- they just drop the MP3s into the folder and identify the location of the folder on the hard drive. The Mac software currently available doesn't allow users to share their files -- although Napster says it's working on Mac software that will let you share files as well as play MP3s from within the program.


Lars Ulrich, drummer for Metallica, is against Napster(See for the complete interview.)Q. What made you file suit against Napster?:A. This Napster thing came completely out of nowhere. We were recording a song for the Mission: Impossible 2 soundtrack, and we got word that there were five or six versions, works in progress, playing on radio stations -- and we weren't even finished with it. We found out our song was being traded on Napster, and we had to put our foot down. The Internet in general is not the issue; the issue is who dictates what goes on with your work.

Q. Do you think the Internet is a realistic way for new bands to get known?:A.

There's only so much attention each band could get on the Internet. The role of a record company is to promote and publicize one band over another. If somebody in a garage down the street from me wants to make their music available over the Internet, that's their choice.

Q. In your suit, you've asked for huge financial compensation from Napster. Has Napster really had any effect on your bottom line?:A. We've sold about a thousand gazillion records and we're glad that we're set for life. The stuff that's being lost on the Internet, it's pocket change -- it's meaningless. But where is it going to be in five years? This is something that could really be out of control.

We're paying more money to our lawyer -- $500 an hour -- than we're losing on the Internet. If people think this is about greed, then they should think again.

Q. What do you think of the bands -- Limp Bizkit, the Offspring, Public Enemy -- that have come out in favor of Napster?:A. If they're saying, "Napster's my friend," I think they're shortsighted and they're ignorant to the big, big picture. I think they will find themselves on the short end when the tide starts turning. They're trying to make this Metallica versus the fans. But it's really Metallica versus Napster.

Q. Even if you take out Napster, there's Gnutella and plenty of other sites that are hopping on the free-music bandwagon. What difference is your suit really going to make?:A. If you can knock a provider out of business, then you can send a message to the others. Somebody is spending a lot of money hoping Napster will be an IPO or will be bought out by AOL. The people who work for Napster are bringing home paychecks -- they aren't working for free.

If free-music providers can get with the legislative community, I'm sure something can be worked out that would be OK for everyone. I think Congress will be holding big hearings that will make the 6 o'clock news -- and there'll be this f****r from Metallica telling these Internet companies what they should do.

When someone shares files on his or her drive, the Napster client sends a list of those files to Napster's central server. That list is incorporated into a huge database of song titles and artists -- no actual MP3 files are stored on the server, just a directory of the MP3 files that Napster users are offering for download.

You Can't Always Get What You Want

This process may sound innocent enough, but Napster's popularity has put a few burrs under the saddles of two groups -- those who maintain computer networks at colleges and universities and representatives of the music industry.

Campus Life:Napster is extremely popular among people who tend to listen to lots of music and have access to high-bandwidth network connections -- namely, college students. Because a large number of these students use Napster and transfer huge files back and forth across the Internet via campus networks, these networks can become clogged by an activity that some school administration officials maintain is recreational -- and therefore unnecessary.

For this reason, Napster has been banned on some college campuses.

Battle of the Bands:Unlike files on MP3 Web sites such as the Internet Underground Music Archive (, which carries files from artists who want their music downloaded, the majority of files found via Napster are pirated -- commercial songs that have been posted in violation of copyright laws.

While some artists, such as Limp Bizkit, the Offspring, Public Enemy's Chuck D (see our interview with CHUCK D elsewhere in this feature), and many independent bands, support having their music freely distributed, others -- and the music industry at large -- don't. For example, Metallica filed suit against Yale and Indiana University, in addition to Napster, alleging copyright infringement and racketeering. Once Yale and Indiana University banned Napster, the institutions were dropped from the lawsuit. (See our interview with Metallica's LARS ULRICH.)Sidebar: CHUCK DChuck D, front man for Public Enemy, supports Napster(See for the complete interview.)Q. Tell me why you support Napster.:A. Napster's the radio of the 21st century.

I just think it develops a whole new paradigm, and there's no legitimate proof it cuts into the traditional market for music. The industry has always prided itself on driving on the enthusiasm of the audience. Now they're having to fight against the enthusiasm of the audience.

Q. What do you think of Metallica and the other big acts that have filed suit against Napster?:A. Metallica shouldn't be getting into that lawyer or accountant mentality. I think most of the people who download Metallica music online are fans who are also buying their music in the stores.

Q. How is free music on the Web going to change the music business?:A. You're going to see the global distribution of music, which is something the music industry promised but never could deliver. I think you're going to see people selling music for a lot cheaper -- and not a certain set price for music.

Downloadable music is the biggest musical phenomenon since the Beatles, and the music industry is slow to come to grips with that.

You have more music on the outside of the industry than on the inside, so fans will find a lot more music. There will be more money in the pot than ever before and there will be millions of hands in it. Artists are going to have to work a lot harder and not expect things to fall in their laps. Fat and happy rock 'n' rollers are only a select few who are supported by the four major labels, and the power of those four hands will be diluted by the power of a lot more hands.

Q. Do you have any problem with a company like Napster making money off your music and not giving you a cut? A. I don't have any problem with that. I've signed with major labels and I haven't had any control over the money. At least this way, I know I can take advantage of the exposure.

Q. If everyone's giving your music away, how are you going to survive as an artist?:A. There's a multibillion-dollar market for rap around the planet. I set up five major concert tours on the Web in the last two years. The day of the lazy artist is over, and I know how to make out. I have five studios. I have interests, so this all works out for me.

The members of Metallica were concerned enough about the alleged music piracy that they tracked down more than 300,000 users who had posted or copied their music, and provided those names to Napster along with the demand that Napster discontinue these users' accounts.

The Recording Industry Association of America (RIAA) (, an industry group that represents major record labels, also filed suit against Napster. As we went to press, a judge had decided not to dismiss the lawsuit against Napster, leaving open the possibility of a trial.

Although Napster claims it has no control over the files that users make available -- the software displays a request that you post only legal MP3 files when you first install the client -- the Metallica and RIAA suits maintain that because Napster retains a database of those MP3 files found on computers running Napster clients, the company knows that audio files are being pirated and is facilitating that piracy. Naturally, Napster disagrees.

Who Are You?:How does this affect you? It might put Napster out of business, and if you're a devoted Napster user, this is certainly sad news. But Metallica's actions could bring the controversy closer to home. The fact that Metallica was able to obtain the screen names of these users should concern those who post and download files on Napster. Should the recording industry wish to get personal and go after individuals -- and you engage in this kind of file trading -- it's possible that you'll be taken to task for your actions.

It's All Too Much:Napster isn't the RIAA's only target. offers a service called that allows you to listen to any music you own over the Internet from any computer. To register as the owner of a particular audio CD, you simply sign on to and insert the CD in your computer's CD-ROM or DVD-ROM drive. The RIAA sued, and in April, a U.S. District Court judge ruled that violated copyright law with this action. At press time, had removed all songs owned by the five largest record distributors in the United States.

Regardless of how specific legal issues are resolved -- or whether Napster will have ceased to exist by the time you read these words -- the battle over sharing files on the Internet has just begun. Though Napster and, with their centralized servers, may be vulnerable to prosecution, those seeking to shut down Internet file sharing are likely to have a harder time targeting peer-to-peer technologies such as Gnutella.

The Direct Route:Unlike Napster, Gnutella allows users to share files between individual computers without going through a central server. Instead, when a Gnutella user performs a search, the Gnutella software, rather than querying a database held on a central server, directly polls computers on a Gnutella network and returns a list of accessible files. Users then select the files they want, initiate a download request, and the files are transferred directly from one computer to another.

With no company hosting a central server, groups like the RIAA will have to target users who offer pirated music or software, rather than a specific company that facilitates that piracy. Obviously there are far too many people sharing these kinds of files to sue them all, but the RIAA may choose to make an example of large-scale pirates.

It Takes All Kinds . . . of Media:Particularly troublesome to the entertainment and software industries is that unlike Napster, Gnutella also supports a variety of media formats, meaning that people can transfer not only music files but also video, pictures, and software. Users with enough bandwidth, patience, and hard-drive space will be able to download the latest feature films and copies of Microsoft Office -- without paying for them.

Fixing a Hole

While prosecution of those who pirate copyrighted material may be a short-term solution, preventive measures may make Internet file sharing irrelevant.

Specifically, the music industry is looking at ways to protect media -- both online and in physical form -- so that it cannot be copied.

DVD Is Not Free:A company called Macrovision (, for example, has created a copy-protection scheme for DVD-Video -- if you try to copy a DVD to VHS tape or a computer's hard drive, the video signal is scrambled, making the video unwatchable. This comes after the discovery that DeCCS, a utility originally intended to allow Linux users to view DVD movies, was being used to copy movies onto hard drives.

Such schemes, however, wouldn't work without some cooperation among entertainment and technology companies, and that cooperation came in the form of the Secure Digital Music Initiative -- a coordinated effort by the entertainment and technology industries to copy-protect media. But the plan doesn't stop with just CDs, DVDs, and other digital recording media. Companies are working on ways to protect online media from being pirated as well.

Controlled Distribution:Liquid Audio ( has created its own system for controlling online distribution of music. A song encoded with the company's Liquifier Pro software is encrypted in such a way that only the authorized listener can play it. Also, the software embeds an inaudible digital watermark into each song, allowing ownership tracking.

In-Store Appearance:This isn't to say that the music industry is relying only on copy protection. There's already a move to plant music kiosks in record stores -- places where you can burn music files onto your own CDs or download MP3 files to portable players such as Diamond Multimedia's ( Rio 500. While this makes buying exactly the music you want easier, it doesn't address the fact that it's far more convenient to download music and media from the Web than to hop in your car to visit the local record mart. Napster and Gnutella have demonstrated that there's a huge demand for online access to media; it's now up to the recording industry to determine how to provide this kind of service while still making a profit.

(Some record labels have announced plans to make albums and singles available for purchase and download online, at least on a trial basis.) The Last WordWhere will this all lead? Moving copyrighted files across the Internet is both easy to do and easy to get away with -- but it won't be for long. Though the RIAA and Metallica aren't likely to start getting people who download an MP3 or two tossed into the pokey, they will take steps other than prosecution to protect their rights and work. This means that stricter copy-protection schemes will be introduced in the near future. Yet this too is a short-term solution; though copy-protection measures will surely reduce piracy, savvy people will find a way to skirt them. With this in mind, the entertainment industry must eventually bow to the realities of this new wired world, shift its current distribution model, and seek alternative means of compensation -- with actions such as advertising on online distribution centers, offering "bonus" material that can be purchased only online, and streaming "pay to play" content on demand.

When not engaged in journalistic pursuits, Contributing Editor CHRISTOPHER BREEN is a musician in the San Francisco Bay Area.

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