On Napster and Shotguns

BOSTON (05/15/2000) - Well, I see that Metallica is now gunning for its fans as I suggested in my column "Testing Metallica's mettle". Fabulous. I couldn't make this stuff up.

Anyway, some of you wrote in disputing the correctness of my analogy in which I said Metallica taking Napster Inc. to court for making products that facilitate copying music is like Bank of America Corp. taking Ford Motor Corp. to court for making getaway vehicles. Others wrote in proclaiming me a god and the next insanely great thing (thanks, Mom).

On the con side of the field was Andy Crefeld, who got a little personal: "Your article . . . was offensive to me in two ways. First off, I like Metallica. I'm no diehard fan, but I think their music is well-written and many of their songs demonstrate good musicianship and lyrical abilities. I'm not sure why you felt it necessary to bash them, but I guess that's your prerogative. However, to compare them to some of those lame bands you did was pretty ridiculous. OK, so you just proved you're an old man. Anyway, it's their right, and of course, in their best interest to protect their music from being stolen.

"Second, I think your logic is completely flawed. To compare Metallica suing Napster to Bank of America suing Ford for producing cars that criminals use is so ridiculous I can't believe it even got past your editor."

Well Andy, my editor is coming up to my advanced age so perhaps his faculties are failing. Oh, and your mother wears army boots.

Insults aside, no one said it isn't Metallica's right to defend their interests. But going after Napster is like a cop shooting the gas station attendant who filled up the bad guy's car because the bad guy is too far down the road.

Bruce Hafford wrote: "Napster, you'll agree, allows the sharing of all your PC-local music with people anywhere on the Internet . . . . My understanding of the Fair Use doctrine as far as music, etc., is concerned is that personal use is the limit. Let a friend listen, fine. Copy a CD to a tape for your own use, fine. Give away copies to countless total strangers, no. But that is the primary function of Napster, correct?"

Sorry, Bruce, but your argument is simply false. Napster is a mechanism for sharing MP3 audio files and does not contain an invitation to violate copyright. Where in the Napster software or on the Napster site does it recommend or condone sharing copyrighted material? Nowhere.

Using Bruce's argument you could say that because Internet file archives have allowed the sharing of copyrighted applications, the vendors of FTP software should be held responsible. What we are failing to recognize here is the distinction between providing a mechanism designed for an illegal purpose and one designed for a legal purpose. A sawed-off shotgun is an illegal weapon for quite obvious reasons - sawing off a shotgun makes it no more than a short-range tool for killing things.

On the other hand, a regular shotgun is not illegal (and I'm assuming that the gun doesn't come with a handy little booklet titled "How to saw off the end of your shotgun"). You should, quite rightly, be against the public availability of sawed-off shotguns. But while you might not approve of regular shotguns, they are legal and that's all there is to it.

The issue is this: Just because you think someone might abuse a mechanism doesn't mean you have the right to assume the worst and make the mechanism illegal. Moreover, unless a mechanism is patently illegal or you can show that the maker of the mechanism intended and encouraged its illegal use, you must leave it alone.

This logic applies to Napster just as much as it does to shotguns or, for that matter, the vehicle that makes the entire furor possible - the Internet. If you ban shotguns, Napster or the 'Net, you had better watch out. Your constitutional rights could be next.

Dire warnings to nwcolumn@ gibbs.com.

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