^{A Few Words in Defense of Copyright, Part One.}

As I write this, I’m listening to Husker Du’s “Zen Arcade.” I’m listening to it on tape even though I own the CD because I want to hear the difference. About 12 years ago, I taped this album from a friend and liked it so much I bought the CD. It sounds like a story the defenders of Napster Corporation would love. Or maybe not.

When I hear the defenders of Napster Corporation, I find myself thinking about the letter and the spirit of the law and how the defenders don’t seem to understand either. This isn’t too surprising, of course. The point is not the intent or the specifics of the law. It’s mostly about the inalienable right of college boys to get free Kid Rock songs.

Anyway, the discussion around Napster Co. is curious. Estimates vary, but somewhere just shy of 100% of the files copied using Napster are copyrighted. As salon.com pointed out, Napster even advertised itself – back in the pre-lawsuit days when they weren’t savvy in legalese – as a place where you could find popular music and not have to wade through stuff you’ve never heard of. Now, they pretend to be an unsigned act’s best friend.

In their pending court loss, Napster’s lawyers are arguing that non-commercial uses do not violate copyright, but it would take a fork-tongued lawyer to argue that Napster – which is worth about 60 million, which has a building in Silicon Valley, which has copyrighted its own software and logo, which has attracted wealthy investors and made millionaires out of its kid inventors, and which can hire famous lawyers – is non-commercial. Internal Napster documents cheer about the “death of the CD [for sale],” making it hard for them to argue that they will help CD sales. Also, Napster, unlike other song-swapping software, plays an active part in the copying making them an easy target for the recording industry.

Outside of the courtroom, Napster supporters most often argue that the technology is new and cool and must then be right. Anyone who doesn’t agree is, like Metallica, old. (Yeah, and Chuck D. is still relevant to the music scene.)

I have to point out that trumpeting the technological capability to do something doesn’t really prove the legal right to do it. This is more saying “Nyah-nyah-nyah, you can’t stop me.” Of course, the recording industry has a lot of money. It wouldn’t surprise me if they’ve started researching ways to trace, foil and even punish music pirates. (Open up your Rage Against the Machine download, hear Britney Spears.) If virus-laden MP3s and trick software programs start burning hard-drives everywhere, you won’t hear record company executives saying “Nyah-nyah-nyah,” but they’ll be thinking it.

Most commonly, Napster Inc. and other music swapping software are defended by comparing them to cassettes or VCRs. Since the music industry survived those technological advances, the argument goes, it can survive anything. What I find amusing about this defense is how often it comes from people who otherwise cheer that the Internet age has changed everything and how we are on the verge of digital evolution. People spend a lot of time insisting that computers are different and that the Internet/information age is all new, but bring a judge in the room and all of a sudden it’s “This? Oh, this is just like an eight-track.”

There is a certain elegance to the way copying was once done back when I first got “Zen Arcade.” You had to know someone with the CD and talk them into lending it. No one else could use the CD until you were finished. Most elegantly, the copy was not as good as the original. You had a tape. No direct access. No digital sound. Tape hiss, no matter how good your system. Also, there was a limit to the number of people who could realistically copy one person’s CD. Even if you lived in a dorm or had a crowded workplace with like-minded music fans, a dozen copies might be made of a CD. And nobody made money off the process.

Napster is different, because digital copying truly is different. When Napster delivers a song from you to me, you still have it. It’s no difficulty for you. An unlimited number of people can copy it at the same time. And none of us know you. And perhaps most importantly, the copy is as good as the original. Actually, the copy is better than the original because it is free. Plus, Napster has made money on the whole deal.

Under Fair Use, Copyright Law allows copying of your own music for yourself and friends. Passing around compilation tapes is legal. My “Zen Arcade” tape is legal. A business selling twenty million anonymous folks on the Internet to you as “friends” stretches Fair Use beyond belief.

Surf a few “Napster = free speech” sites and you’ll hear about how evil the record companies are. Personally, I’ve never signed a recording industry contract, but let’s just say they’re evil. It’s embarrassing to belong to a generation that doesn’t think twice about buying crap made by political prisoners in China and yet claims stealing Korn songs is a blow for justice. Let’s face it, no one is downloading songs in the name of justice for recording artists. This is not about getting Puff Daddy a bigger limo. We’re downloading songs because we don’t feel like paying for them. It’s also embarrassing to belong to a generation that doesn’t really think we should have universal health care but believes being denied free Eminem songs is fascism.

The assumption that Napster and similar businesses will benefit musicians and the recording industry is shaky. (Besides, who wants to benefit the recording industry? They’re evil, remember?) I broke down and bought “Zen Arcade” because my tape sounded crappy, because I didn’t have room for the 26 minute “Dreams Reoccurring,” and because I wanted to have programmable access to different songs. I had a copy, not the original. Even with the difference in quality between tapes and CDs, I only bought two or three CDs after over a hundred copied tapes. Not the best support for the argument that copying is advertising. When technology takes us to a place where the free copy is as good as the price-tagged original, and the copy is even easier to obtain, glossy liner notes becomes the only reason to buy the original.

I don’t blame anybody for using Napster. When free stuff is being given away, more often then not I stick my hand out too. But spare me the self-interested, quasi-legal justifications.

Next: Part Two: What does information want?