Advice From the Past 6 Apr. 2005 -- James Doyle, Duke Law School I was totally horrified when Napster and Gnutella and Freenet appeared because I figured there'd be two possibilities. One is that Napster would lose, there'd be an awful court case and there would be some dreadful injunction which, under the guise of shutting down Napster, actually pretty much shut down any peer-to-peer file-sharing system and perhaps at a significant impact on the Internet altogether. That was dreadful. The other one was, which seemed unlikely, although David Boies might have changed this, that Napster would win. And if Napster wins, the music industry goes to Congress and says, "Look, even with these huge new rights you've given us, and these new criminal provisions and these protections, we still can't stop things like Napster. We need more laws." And so a year after Napster won, there'd be new legislation and it would be even worse. So either way, I thought it would be a zero sum game. We were going to lose whatever happened. We lose if Napster won, we lost if Napster lost. What I missed was the importance of 38 million people -- Napster's users. And you wouldn't have gotten Senator Hatch up here two years ago. You wouldn't have gotten Senator Hatch up here without 38 million people. And what that means, I think, is that you suddenly have a whole group of people who are interested in intellectual property, who see this as an issue, who want songs online. They maybe want to pay for them, they maybe don't want to pay for them, but what that means is the dynamic of intellectual property, which up to now has been that the industries and they basically write the rules in collaboration with the legislators. That's changed. And what that means... Up to now, artists, number one, and citizens, number two, have not been represented in those discussions. Having Napster doesn't necessarily change that situation for artists, although it may change it a little bit. It may open it up to new ways, new methods for artists to deliver their content and that, in turn, may put pressure on the record companies -- which may, in turn, change the conditions for artists. For citizens it does change things a little bit. People say, "I want to be able to do this. I'd even maybe pay some money. I'm tired of paying this much money for a CD and a jewel case." That's not a great legal argument, it's not a great philosophical argument, but it is 38 million arguments why things have changed dramatically. So if you do want a viable alternative method of music distribution, number one; and you do want better terms for artists who signed with existing labels, number two; how would you get those things? Seems to me that Napster... All Napster is, is it's a potential technology on which you could fight with the existing companies to break cartel-like practices in terms of contracts with artists. That's all it is. It isn't the end of the fight, it's just a place where the fight could be carried on. So what you need is to organize musicians, which is one of my friends tells me is rather like herding cats for a living. You need to organize musicians, you need better standard contracts, you need technologies which fulfill some of the functions that the music industries fulfill. There's always going to be somebody fulfilling the role of the intermediary of the music industry -- the person who sort of establishes someone as the core thing. Napster alone doesn't solve any of that. All it does is it opens up a new space in which people could fight about it and which musicians could fight about it, to get better contracts both inside and outside the conventional music industry. So I think arguing back and forth, Napster good, Napster bad, is really kind of missing the point. If we really had a competitive industry, you would expect to see the following: You'd expect to see major differences in pricings among CDs, you'd expect to see major variations in major labels and contracts signed with record companies. You'd expect to see a major difference, a range of arrangements with radio companies and so forth. Right now, you don't see... there is some variation but not an enormous variation, right? Of course, Hilary's right. You have a choice. But it's a choice which right now is a fairly binary choice, it's in or out.

What you'd really see if you had a better market, is you'd see a lot of variations. Some people are really risk-averse, some people are really risk-prone, there's stuff in between, so the hope is that you'd get something like that. As I said before, Napster alone is not going to get that, and it's not even clear, I'm not sort of banging the drum for Napster here, it's not clear in the long run that Napster is going to be of overwhelming benefit to artists. I think the jury's out on that. I don't think anyone knows one way or the other, actually. The record industries don't actually know that it's going to be all so fatal and the proponents don't know if it's going to be so good. I think you've gotta look at two things. The first is, what kind of organizations are you going to have, both commerical organizations that are offering something different than what the major companies offer and kind of union organizations. Think of baseball players, think of equity actors guilds, they have standard form contracts, which means the superstars still get a lot of money but the journyman players do decently. The music industry needs more like that. The second thing you've gotta worry about is not so much what's going on now, but like, what's DMCA Mark II going to look like? What's the next law going to look like? Musicians have got to think both like musicians and like citizens. There is a real danger, I think, coming up. The danger is not that the record industries have a business plan, of course they should have one, but that it gets enacted as law. When it gets enacted as law, we start saying the only way to defeat Napster and Gnutella and the like, is to go to universal mandated secure digital content, that it all has to be secure and we that have to change the way the Internet works because if you look at the way the internet works now, comparatively large degree of anonymity, comparatively large degree of distribution of the network. You don't know who's listening to the music. You don't know who's sending the music. From the point of view of someone who has a kind of SDMI business plan, that all looks like a bug rather than a feature. In the perfectly legitimate goal of trying to preserve their business, I'm frightened that the "big content" will end up convincing legislators that they need to say that the way the Internet works now is too dangerous to that form of electronic commerce. That they start tinkering with it and they start changing it and all the things that I value about it and I think you should value about it as a free speech technology, get eaten away. I think that's bad for you musicians, but I don't think that's the most important thing about it. I think it's just bad for people.