Vinnie Van Go-Gogh is a DC musician [Rake & From Quagmire] and operator
The Napster/Gnutella model is harrowing, as college-aged kids assume the legal right to enter into licensing and distribution agreements on behalf of the artist. Even worse, no right of ownership is granted to the original artist. When a record company sells a CD/LP they are selling a limited single-use license, there is no suggestion of ownership. The average consumer confuses the ownership of the storage media with that of the copyrighted material on that storage media. When a user posts an MP3 from a copyrighted CD, he/she is violating the terms of that license granted by the record company.
When I post my music on my web site for open, non-commercial distribution, my goal is further non-commercial proliferation of my work. By doing this I do not surrender copyright or claim of ownership. The Napster/Gnutella model of “Distributed Aggregation” makes sense in this context, as it aids the transit of specific low-power frequencies that do not have access to the traditional distribution channels. In an arena where distribution and access are paramount, this open community provides many advantages to the independent artist who wishes to work outside the realm of commerce. The number of visitors to a specific website may be small, compared to the number of users trolling Napster to download music.
When a commercial website wants to distribute my music, I sign a contract with that website for limited, non-exclusive distribution of my recorded music [currently as MP3s]. I agree to the distribution of my music from that website for a certain period without relinquishing ownership. I also authorize the website to provide a limited use license for the end user, which excludes commercial distribution. The Napster/Gnutella model, on the other hand, does not allow for any licensing agreement with the artist and the end user.
The recording industry’s sinister practice of making a specific legal claim to musical property of artists as part of the recording contract makes the legal wrongs of the Napster user appear natural. However, the musician willingly enters into an agreement with the Recording Company as a “necessary practice” in order to participate in the realm of commerce that has engulfed the music community. If the artist who created the music empowers the Recording Company with the right of ownership, then the Recording Company alone authorizes legal distribution of the copyrighted material. As much as this agreement enforces the idea that artists must relinquish control to the Record Company, the Napster/Gnutella model is more insidious as the artist relinquishes this very control to any and all consumers. No agreement exists between the Napster user and the artist.
Musicians who surrender their copyright to the college-age Napster community are ignorant of the environment that they are fostering. It is a further degradation of artist’s rights, and does not aim to further community or independence from the Industry. These self-centered artists are using the Napster issue as a marketing technique to further their goals in the realm of commerce. The Napster/Gnutella “Distributed Aggregation” model may have allowed for an open flow of music, however, the Napster/Gnutella user’s intent is transpiring as theft. The Napster/Gnutella community is not about circulating music that exists outside of the realm of commerce, it is about circumventing that structure of controlled distribution entirely, and creating a new realm of commerce that enables users to pillage copyrighted material.
Napster could have been a real threat to the Recording Industry’s chokehold on the existing distribution channels, enabling artists to distribute, for free or for fee, their work. In this context, the Napster/Gnutella model represented the final hurdle for successful distribution of music to a large-scale audience through specific-use licensing agreements. Alas, the Recording Industry has captured the issue, and have aligned many artists at its side. Now, the recording industry is poised to capture the technology, and retrofit the existing distribution channels to the web. To be sure, musicians will have less power on the web, and that is why Napster is bad.