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The Day the Music Died

Roy Esaki

This past Monday, much to the chagrin of music pirates everywhere, the Ninth Circuit Court of Appeals affirmed much of an earlier court’s injunction against Napster, the online music swap shop that has been charged for being a “contributory and vicarious copyright infringer.” Both this ruling and Napster’s voluntary movement toward charging user fees seriously threaten the existence of the free musical buffet. Though it’s hard to admit it, after considering how 50 million people could at the very least acquiesce to an unequivocally illegal and unethical copyright infringement, the ruling marks a positive step towards the development of a more principled society.

Legally, Napster’s position is that it serves as a mechanism for fair use, by allowing for sampling, transferring of already-owned songs to a different format, and permissive use (where the artist has given express consent). It adamantly claims that it should not be held accountable for violations by individual users, and it does not infringe copyrights (though it claims intent to compensate rightsholders and artists). That’s a debatable and complex legal contention, deemed untenable by the Circuit Court, and there’s not much individual users can do about it.

What individuals can (and should) be concerned with is whether Napster is ethical. The question of ethics concerns not Napster’s legal standing, but each user’s individual actions. On a personal level, it is absolutely unequivocal that copying ripped songs that one didn’t pay for is copyright infringement and thus is illegal. Establishing legality doesn’t inherently yield ethical behavior, however. Underage drinking, driving over the speed limit, and engaging in civil disobedience are all illegal, but arguably not unethical.

The morally conscientious citizen, however, should have a good reason for breaching the law. The boldest rationalization for using Napster is that cash-strapped, oppressed consumers need to fight back against the monopolistic recording industry. The most extreme justification would propose that teaching the capitalists a lesson is the principled thing to do. Such arguments are easily countered by the reasoning that the frustrated consumer could always refrain from listening to overpriced music, which is hardly a necessary commodity. Stealing music from the music giants is essentially the same as stealing overpriced coffee from Starbucks.

The most convenient rationalization, of course, is that stealing music is a victimless crime. Unlike shoplifting, the music scavenger doesn’t actively deprive a musical group of any of their current wealth, and if the scavenger wasn’t going to buy the CD, then the recording industry doesn’t even lose any potential profits. This argument is especially convenient when the artists are no longer alive, like Frank Sinatra, the Andrews Sisters, or Rachmaninoff. It’s essentially analogous to sneaking into a movie theater through the back door, but without the risk of getting caught. It’s not right, but most feel that it’s not terribly wrong either.

But it is. It’s wrong and dishonest to steal property, real or intellectual, no matter how easy it is, how rich the victim is, or how much one desires the goods. We’re not Jean Valjeans or Robin Hoods; we don’t vitally need the music, nor are we serving the public good by our complicity in pirated music. But we don’t really care. It’s a somber testament to our fallibility and our weakness that even the acknowledgement of the unethical nature of Napster doesn’t deter us from using it.

It will be a sad day when the free Napster is shut down, as probably will happen. But rather than scampering to the alternate vices of Gnutella or Freenet, we should rejoice in the opportunity, created by our justice system, to emerge from the Napster scandal with greater integrity and principles.