Joe's take on the great Napster debate
Joe Burns, Ph.D.
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Greetings, Weekend Silicon Warriors, Usually I am a week ahead on my newsletters, but now and again something pops up that makes me want to hurry up and push out an opinion. The Napster court case is just such a topic. I'll state my opinion right up front so that you can get a handle on where I am coming from. I am not a fan of how Napster works in its present configuration. I think it's wrong. I think it is people circumventing the monetary side of music. [What's wrong with that? -(see also That Thing) - LB]
No, I do not think Napster should be disbanded, but I do think
it should be set up a little differently than it is right now. I like the
idea of instant music. I love the thought of creating my own CD by just choosing
the songs I want. Yes, I know there are sites where I can choose the songs
right now. I just don't really want any of the songs that are offered. I
would like to choose from current songs and make compilations. Napster would
allow me to do that. The problem is that someone has to pay for that
As it stands right now (things may change by the time you
read this), Napster would have been shut down today (Saturday) at 3 PM, but
an appeals court has granted a stay allowing the site to remain up and running.
The Recording Industry Association of America (RIAA) will now appeal and
take it one court level up to the full 9th U.S. Circuit Court of Appeals.
This decision/appeal process will go on a few more times until a final ruling
stands by a higher court either refusing to hear the case or the Supreme
Court gets a crack at it. So as it stands, Napster stays alive and kicking,
and people are going nuts trying to download every piece of music that they
can get their hands on. The source of their music may die soon, so they are
getting what they can while they can. That makes sense to me.
In this newsletter I wanted to offer a rebuttal to some of
the more prevalent pro-Napster arguments I am hearing through the news media.
Let me state again that I am not against Napster, I just think it has to
be run differently to become legal. I'll get to my suggestions for new business
practices before the newsletter is over.
1. "Napster is just allowing us to get at the music unknown
artists put on the Web."
5. "The only way to keep file-sharing technology from moving
forward is to force us all to return to using 486 computers with 14.4-Kbps
6. "Cassettes did not hurt the recording industry, videotapes
did not hurt the movie industry, and music trading will not hurt the music
7. "Napster acts as merchandising. People hear the music
and will then go buy the CD."
8. "Napster is just like radio." AAAAAAAAAAAUUUUUUUUUUGH!
This is the argument that just drives me straight up a tree. Napster is no
more like radio than it is nuclear physics. However, that statement does
hold within it the answer to the Napster problems. First off, let's look
at a song on Napster. Someone does buy the CD. There, a commission is paid
to the artist. That person copies the song, posts it for all to copy and
the money trail to the artist and recording company stops. Now radio... A
song is sent to radio and radio plays it. But what some of you may not know
is that radio stations pay fees to be able to play that song. Most commercial
music is licensed by one of two firms, ASCAP or BMI. Yes, there are always
songs sent to radio stations that do not have representation. Local bands
would send me tapes all the time when I was a DJ. However, the majority of
the music is licensed and my radio stations would pay fees to ASCAP and BMI.
Radio stations can either pay what's known as a blanket fee, which is a flat
rate, or a fee based upon what songs you actually played. Either way, twice
a year we would send three days of our music play lists off to the licensing
firms. Those firms would in turn tally the number of all plays a recording
artist received, and pay them royalties from it. The more you were played,
the more you got paid. Before the advent of computerized play lists, I remember
having to write down every song I played, the artist, the authors, the label,
and a few other things. Ugh. What a pain. It even goes as far as music used
in commercials. I did the voice work for one car company that had the Bachman
Turner Overdrive song "Let it Roll" behind their commercial. We had to note
that when sending in the forms. So, as you can see, radio and Napster are
pretty darn different, but using radio as a model, I think we can alter Napster
a bit and actually make it viable...and cheap. My suggestion is that Napster
would run much more like a radio station. To begin with Napster must be made
to pay fees on the music ASCAP and BMI licenses. These fees will, of course,
change depending on how many copies of a certain song move through the central
Napster server. Yes, Napster can keep tabs on all of this - how do you think
Metallica received the names of all the people that downloaded their music?
Now, some of you are thinking that if Napster has to pay the fees for everyone
that swaps the music, they will go out of business. That's true. It's too
much money for one site to have to pay. What will need to happen is that
people who wish to use Napster will pay a fee structure. An account should
be set up attached to a credit card that keeps track of what songs a person
swaps. Each time the person swaps a song, they should pay a small amount.
I base this one what I know my radio stations paid in fees. The amount will
certainly be small too. (At least it should be if everybody plays fair) At
this point you are just paying on the royalty plus a small bit for manufacturing.
You've eliminated a middleman. The music industry would in effect
be selling directly to the consumer. I could go in, set up an account, and
swap ten of my favorite songs and burn my CD, legally, for a few bucks. I
get the music, Napster pays the royalties, and everyone is happy. Well, almost
everyone. Of course some people will have a fit at this point because even
two or three bucks will be too much for them and they will start trading
around Napster. Fine. Napster will be legal and those people will be the
ones the RIAA will go after. Napster could be the central database for legal
music distribution. Those artists that post their music to the Web freely
should be kept separate from those songs that are not. That way, people could
swap that free music to their hearts' content without touching the fee-based
music. In addition, once Napster gets the recording industry on their side,
the MP3s that will be swapped or bought could be far better quality. You
could have numerous versions of songs. You may be able to start swapping
outtakes or first takes that people never get to hear. Maybe you don't want
the dirty language - fine. Just grab the version that's been edited. This
could be great. If Napster sticks to this fight and remains on the same course
that it has chosen, it's going to lose and the site will be shut down. My
suggestion is rather than dig in your heels and fight a losing battle, start
to work with the people that represent the music. Make music something that
can be downloaded legally for only the royalty fee plus a small percentage
to cover manufacturing. I would think you could get a song for pocket change
if the RIAA plays fair. That's where we'd see some true colors, huh? If Napster
decided to try a deal like this, would the RIAA attempt to boost the price
so that a CD created online would cost the same as one in the store? I hope
not. That would be unfair. If all play fair, I think online music could be
one of the greatest ideas yet because, in all honesty, I hardly ever like
an entire album anymore. I just want one song from this group, two from that
group, and another one from another group. This would be perfect. Maybe we
could even get back to the 1950s style of music producing when singles were
the thing and groups that only had one song were given a chance because the
medium allowed it. That might see the end of albums that have one great song
and twelve losers. The 45 could be king again. That would be great. Well,
the "45" CD.