Metallica's "Justice" And Napster

Last week, Metallica became the first major rock group (quickly followed by Dr Dre) to file suit against a music-sharing Web site, in this case Napster. They claim they're protecting their art, but they're also putting a big chill on the very notion of free software, open source, and the free movement of information and ideas on the Net. Prior to this, the battle -- currently in the federal courts -- was between the recording industry and so-called music "pirate" sites. Metallica managed to instantly spook Harvard, Yale and scores of other colleges into booting Napster off their servers. Whatever you think of the Napster flap, this is bad news for the idea of a barrier-free Internet. (Read More)

Down the road, Metallica -- which has always marketed itself as rebellious and independent -- may be better known as the first major music group to challenge free (or, depending on one's perspective, "pirated") music on the Net than for its hits of yore. Even before the week was out, the rap group Dr Dre had followed suit. And Dr Dre took the music wars a step farther by threatening to sue music downloaders as well as the Web sites they use.

Metallica's lawsuit, filed two weeks ago in California, charged that Napster encourages music piracy by enabling users to trade copyrighted songs through its servers. The suit named a number of major colleges -- the University of Southern California, Harvard, Yale University (which immediately denied access to Napster through its network connections), and Indiana University. That action caps weeks of intensifying struggles over digitally-distributed music. It's significant, since if powerful schools like Yale cave, which they instantly did, more vulnerable institutions will quickly follow. Individual artists and bands have enough money to launch a wide arrange of expensive lawsuits, and a number of institutions, from colleges to cable service providers, are running for the hills. Early in April, the high-speed cable service provider Cox@HomeSanDiego told several hundred of its customers to stop running Napster or lose their cable modem accounts.

Metallica's lawsuit comes at a significant time legally. Napster and the music industry are already wrangling in federal court over whether the Digital Millenium Copyright Act (DMCA), passed nearly two years ago, and the Audio Home Recording Act of l992 (AHRA) are constitutional and applicable to the distribution of music on the Net. Metallica's lawsuit is odd, and almost pointedly gratutious: the recording industry already filed suit filed against Napster in November, and Judge Marily Patel of the Northern California Federal Court is expected to resume testimony on that case next month. It seems that the DMCA is the most menacing of the two laws, since according to the law, the only way service providers and institutions can avoid liability in lawsuits like Metallica's is if they bar software that could transmit copyrighted material. That has an enormous -- potentially devastating, in fact -- impact on the Net as a barrier-free environment where information can move freely.

But rather than wait for the outcomes of these court rulings, Metallica and Dr Dre dramatically clouded the issues surrounding digital music even farther.

"With each project, we go through a grueling creative process to achieve music that we feel is representative of Metallica at that very moment in our lives," said Metallica drummer Lars Ulrich in a press release. "We take our craft -- whether it be the music, the lyrics, or the photos and artwork -- very seriously, as do most artists. It is therefore sickening to know that our art is being traded like a commodity rather than the art that it is. From a business standpoint, this is about piracy --- a/k/a taking something that doesn't belong to you; and that is morally and legally wrong. The trading of such information -- whether it's music, videos, photos, or whatever -- is, in effect, trafficking in stolen goods."

It's a disengenuous statement -- the key words being "business standpoint." On the Net, Metallica's music is actually being traded as the "art" it allegedly is, not as a commodity sold by record companies. Ulrich greatly oversimplified what has become one of the most complex and interesting cultural problems arising from the Net: whether conventional notions of copyright can still work in an environment increasingly influenced by the open-source ethic. Metallica apparently couldn't wait for the courts to try to resolve this thorny matter, lest it lose another nickel. This is a strange position for a band who sold most of its CDs in the pre-MP3 era, and which isn't starving.

Metallica may invoke the protection of their art, but lawsuits like this have a chilling effect on free speech and, in this case, on the use of software to transmit information freely. The cautious ISP, college, or business (and almost all of them are lawsuit-wary) will simply ban Napster or anything like it to stay out of potential legal trouble. This is the Net equivalent of what constitutional lawyers call "prior restraint," self-censorship by institutions who block out kinds of information to stay out of potential legal trouble. Traditional media have been radically influenced by the chilling effect of lawsuits. Fact-checkers and lawyers pore over anything even remotely controversial before it appears in papers, books or magazines. To date, the Net has been dramatically freer than the off-line information environment, a major reason it's so much more exciting, diverse and interesting.

"This action raises the same copyright issues as the lawsuit filed against Napster by the recording industry in federal court in San Francisco," Laurence Pulgram, Napster's lawyer, said Friday. "The complaint reads like it was written to inflame the press and intimidate universities rather than to present legal issues to the court. It is hard to understand why plaintiffs -- a group located in the San Francisco Bay Area -- saw it necessary to file a separate action in Los Angeles."

Pulgram got it precisely right, and the reason is pretty obvious. Metallica's suit made news all over the country and scared the wits out of even powerful educational institutions like Yale, whose legal counsel sent this e-mail to the entire university within hours:

"To the members of the Yale community,

"As you may have read, a lawsuit has been filed by the rock band, Metallica, against the music file-trading software site, Napster, Inc., and several universities, including Yale. In its lawsuit, Metallica makes claims of copyright infringement.

"The University is strongly committed to protecting intellectual property. In February we specifically alerted our residential college community to the requirements of Federal copyright law as they apply to individual use of Napster. See .

"The University condemns violation of copyright laws, as our policies and procedures clearly state. We also want to assist students and others in understanding and complying with the requirements of those laws. For information on University policies and procedures related to this issue, see www.yale.edu/policy/itaup.html and www.yale.edu/policy/itaup.html.

"Until we can clarify the legal issues surrounding Napster, access to napster.com will not be available from the Yale network. We will keep you apprised of developments."

The lawsuit seems also clearly meant to call attention to some of the more noxious provisions of the DMCA, which holds colleges and other institutions liable for copyright infringement unless they take active steps to remove from their Web sites software that transmits copyrighted material.

For musicians to so unthinkingly embrace a simplistic, corporatist and greedy position is ominous. Confronted with the spectre of wealthy rock groups filing lawsuits along with the Recording Industry Association of America (RIAA), many more schools are expected to deny access to Napster as the result of Friday's court action.

Metallica's self-righteous and curiously unknowing statement doesn't take into account the fact that millions of Americans have been accessing free music for years now, and have come to see their music archives as both a right and an integral part of their lives. Nor will the lawsuit encourage artists or the music industry to explore the many alternative -- yet still profitable -- models of distribution that reflect the new realities of the Internet. Artists have a right to be paid for their music, but the rash of lawsuits don't solve the copyright problems spawned by the Net, they simply drive them underground.

Free and downloadable music will always be available to college kids with enough bandwith -- there remain hundreds, if not thousands of music- sharing software programs all over the Web, including AIM and ICQ.

Mostly, Metallica has ensured that poorer kids or people without vast bandwidth will be cut off from acquiring music, from experimenting, from fostering new bands. Many artists have welcomed the spread of digital music distribution, claiming it frees them from the monopolistic control (and high cost of dealing with) record companies, permits them to reach new audiences, and generates interest in new forms of music. Meanwhile, Variety reports, the record companies made record profits last year -- $15 billion -- despite the endless handwringing about online pirates and the epidemic of lawsuits.

Ownership of ideas and creative works is no longer a simple, black-or-white issue. Institutions like Yale seem to have little idea what mayhem they're encouraging when get panicked into shutting down Napster, even before those issues are discussed or adjudicated. In bringing this lawsuit, Metallica has pitted itself against the nature of the Net, and its own fans -- especially working-class kids without T-2 lines who listen to the band's music.

Metallica's efforts to shroud its greed and publicity-seeking in morality is as transparent as it is self-righteous. The band ought to get its wish. Fans might consider stopping trading, downloading -- or buying -- the band's music in any form until it permits educational, legal and artistic institutions to try to come to grips with the new realities of law on the digital frontier.