In his article “Piracy as a Business Force”, Adrian Jones presents us with a detailed history of pirate radio and its ambitious goal of challenging the public monopolies of its time. When it was first created, one such monopoly was the BBC, which acted as a “single, public-service broadcaster” that Jones argues “restrict[ed] the ability of individual citizens to experiment in the ether” (48). Essentially, pirate radio was a form of protest against the standardization policies set in place by the BBC. People wanted more freedom in what they listened to, and when they listened to it. Thus, supporting pirate radio became a way for the public to unite and rebel against an overbearing corporation. However, over the years musical piracy has evolved. With the arrival of the Internet and the creation of music sharing programs, piracy has become more about free music rather than ‘sticking it to the man.’ Though some may argue that pirating music online is a way to further avoid filling greedy music labels’ pockets, artists’ outright frustration towards pirated music proves that pirating music is no longer the form of rebellion it once was. This frustration is evident in the many court cases filed against popular pirating programs, such as metal band Metallica’s decision to sue Napster.
Prior to the dawn of digital culture, pirating music was neither very common nor very easy to do – at least not on the scale we know today. One could sit by the radio all day waiting to record one’s favourite songs off a local station in order to make a mixed tape, or borrow a cassette from a friend and copy the tracks onto a second blank cassette. Both were lengthy processes that produced low quality copies. Yet copying music was only a difficult practice until the arrival of digital recording and, primarily, the Internet, which revolutionized the world with peer-to-peer sharing. Whereas Jones states that “pirate listening [of pirate radio] threatened to create a population of autonomous, individual agents” (48) so too did the advent of peer-to-peer sharing – simply on a much grander and more economically-centred scale. Pirate radio offered people the chance to undermine the BBC’s censorship and control, while peer-to-peer sharing allowed individuals to listen to the music of their choice, all the while undermining the profits generated from it – for both labels and artists.
However, even with the arrival of the Internet, sharing music files remained a relatively unorganized process. That is, until a college student by the name of Shawn Fanning created a peer to peer sharing service, called Napster:
“Napster’s system allowed music on one computer hard drive to be copied by other Napster users. Digital MP3 files are created from an audio compact disk CD by a process called “ripping.” Ripping software allows a CD user to compress the audio information on the CD into the MP3 format, and copy it directly onto a computer’s hard drive. Napster users used Napster’s centralized servers to search for MP3 files stored on other computers. Then, exact copies of the MP3 file could be transferred from one computer to another via the Internet.” (USlegal).
Even though Napster greatly facilitated music sharing across the Internet, the program still came with a fair amount of issues. For one, downloading the program onto a computer immediately made all files (such as videos, MP3s, and pictures) available on the internet for other users to download (thus the ‘sharing’ part of peer-to-peer sharing). This ultimately left one’s computer open to viruses – a threat that most Napster users remember well. However, the greatest issue by far was that most of the music being downloaded fell under copyright law, and thus constituted an illegal action. Piracy was no longer about listening to shadow radio stations but about actively searching and copying music onto a computer.
As to be expected, both record labels and artists quickly revolted against this type of file sharing as a potential threat to their profits. The first ever band to sue Napster for copyright infringement was Metallica, with their drummer Lars Ulrich as leading spokesperson. After hearing one of their unreleased songs playing on the radio, the band was able to trace the source back to Napster (United States Senate Committee on the Judiciary, Testimony of Lars Ulrich). It was not so much that Napster had Metallica’s music available on their website, but rather that they put the band’s music there without consent or permission. During his testimony, Lars states,
“But just like a carpenter who crafts a table gets to decide whether to keep it, sell it or give it away, shouldn’t we have the same options? My band authored the music which is Napster’s lifeblood. We should decide what happens to it, not Napster — a company with no rights in our recordings, which never invested a penny in Metallica’s music or had anything to do with its creation. The choice has been taken away from us (United States Senate Committee on the Judiciary, Testimony of Lars Ulrich).”
Some may argue that this testimony sounds like the complaint of a rich artist creating a problem for users who want to be able to listen to their favourite songs but who do not want to pay for it. Much of the backlash against Metallica’s lawsuit followed this line of thinking, stating that the big artists or record labels are simply trying to squeeze every penny possible from their fans, and how much money can they possibly be losing anyway? Yet Lars responds to these critics, stating “you have an industry with many jobs–a very few glamorous ones like ours — and a greater number of demanding ones covering all levels of the pay scale for wages which support families and contribute to our economy” (United States Senate Committee on the Judiciary, Testimony of Lars Ulrich). With this in mind, piracy no longer seems like a rebellion against a big, controlling corporation, but rather an overstepping of boundaries. With the rebellious aspect removed, we are left with a push and pull between fair use and intellectual property rights. Though some might argue the spirit of rebellion that inspired the original pirate radio might seem alive in sites like Napster, the scale to which pirating programs negatively affects the entire music industry – from the big, established icons like Metallica, to the less glamorous but equally important jobs – contributes to the overall decline of said industry.
Napster’s initial response to backlash from the record labels was to plead fair use in their engagement of the copyrighted material (USlegal). Section 107 of US copyright law states four determining factors of whether or not use of material can be constituted as fair:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work (USlegal).
Napster argued that their users were simply sharing music they had already purchased in CD format, and that the songs they downloaded for free were samples to be listened to temporarily before purchasing the full product. These arguments were rejected by the court on the grounds that sampling is in fact still considered commercial use, as well as the concrete evidence that the market had been affected by their program (USlegal).
In 2001, Metallica took Napster to court, and a settlement was reached, wherein Napster was forced to make some changes to the way they ran their program, as well as to what kind of music they were allowed to make available to their users. As Metallica’s issue was never with the sharing of music between their fans but rather the use of their material without permission, they agreed to offer some of their work for Napster to include in their services. For their part, Napster was to stop sharing copyrighted material, and could only use music with permission from the artists. Furthermore, it was up to Napster to alert the authorities if any infringed material entered their network (United States District Court Northern District of California, C 00-4068). It is this last directive that was to lead to Napster’s downfall, as they simply were not able to completely block the transfer of copyrighted material. Thus, in 2002, Napster was taken down for good, and Shawn Fanning’s 15 minutes of fame came to an end.
Several other similar programs were to step in and take Napster’s place, such as Kazaa, Limewire, and Frostwire to name a few, but none lasted for very long as they were always unable to find a way around copyright infringement. Yet the closure of these programs is never a true disappointment on the part of their users, as people always find new way to download music illegally. Nevertheless, in recent years, the public’s attitude towards musical piracy seems to have shifted. There is a movement towards buying music in order to support artists, and, as always, artists are willing to make some of their material available for free for their fans. Furthermore, programs like iTunes enable users to buy individual songs from artists by way of sampling – a fair middle ground between purchasing an entire CD and downloading a song illegally. These developments allow for the creation of a “population of autonomous, individual [legal] agents” (Johns 48, emphasis added), with the ability to listen to what they want when they want.
Ultimately, digital music pirates do not have the same legacy as radio pirates and their listeners. The latter had a significant and beneficial cultural goal that sought to undermine monopolies and corporations, allowing for more cultural freedom. The former see music as a commodity than can be freely distributed, ultimately limiting the market value of any such creative work – and in essence stifling that same creative freedom. Piracy is no longer about making a political or social statement, but is in fact akin to distributing black-market goods, which undermine both the market and intellectual property. Society clearly does not view these two types of pirates equally. Radio pirates have a “Pirate Radio Hall of Fame” and a list of movies that capture the spirit of their rebellion, while musical pirates are still being hunted down as deceivers of the law.
Johns, Adrian. “Piracy as a Business Force” Culture Machine [Online], 10 12 Jan 2009
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA. METALLICA, a California general partnership; E/M VENTURES, a New York joint venture; and CREEPING DEATH MUSIC, a California general partnership v. Napster Inc. 5 March 2001. Legal document. Accessed 24 October 2016
United States Judiciary Committee. Hearing on “Music on the Internet: Is There and Upside to Downloading?” Testimony of Mr. Lars Ulrich. July 11, 2000. Accessed October 24 2016.
US legal, Inc. “Napster.” Web page. Accessed 24 October 2016.