Can Napster be Considered Intellectual Property?

The ethics of a program such as Napster have been debated since its inception, and the reason for this is because it made stealing not feel like stealing. The ethical issue at hand is one of both consumer responsibility and intellectual property. Incidentally, the decisions by the court must be looked at from an ethical standpoint as well. Ultimately, Napster did not actively support the proliferation of others' intellectual property, even though it enabled it on such a large scale. The real issue then is that of consumer responsibility, because many who downloaded also shared what they had acquired for other users to download. Through examining the concepts of intellectual property and consumer responsibility, it is clear that Napster should not be held responsible for people stealing music.

Intellectual property is somewhat of an abstract issue, and gray areas regarding it exist in the law. Whereas conventional property is clearly owned, such as land or jewelry, intellectual property is owned equally much in theory, but less in a physical sense. Only one owner (be it a person or a few people) can own a necklace and be in possession of it. With intellectual property, such as music, the owner can be in possession of it and simultaneously have it stolen. These gray areas are what allowed a program like Napster to start up in the first place. There are, in fact, many legitimate uses for Napster, such as sharing files one does own, or sending music to a friend. The parallel is often drawn between peer-to-peer sharing networks and recording a show off TV for a friend. Since TV is free, this is allowed, because the time the friend watches the show is of no interest to the law. Napster is different, however, because it quickly grew to operate on such a large magnitude. One is not allowed, however, to copy a whole season of a TV show, and mass distribute it, and this is what Napster made it possible to do with music.

Since the service itself was not illegal, the Recording Industry Association of America (RIAA for short,) could not engage in any legal action. The fact that Napster and the RIAA were involved in talks "from the start," however, indicates that the RIAA knew it was going to degenerate pretty quickly into a program used to share copyrighted music, the "intellectual property" that is the point of contention. Since the music business is in fact a business, the money lost by the record companies and the artists when people download is also an issue. Napster should not bear the brunt of responsibility because from its inception, the intent was not in any way to pose a threat to the music business. The threat to the record industry appeared only when the avarice of consumers manipulated Napster to circumvent buying music.

Intellectual property is defined as "property (as an idea, invention, or process) that derives from the work of the mind or intellect; also: an application, right, or registration relating to this. Under this theory, online "peer to peer" file-sharing, as it is called, allows users to distribute the artists' intellectual property, uninhibited, to other users all over the world. The artists get paid nothing, and under the copyright act of 1976, artists must be paid for their work. The only exception is when it is used for educational purposes, and there are different formulas used to determine royalties for movies, radio, commercials, etc. Users of a program like Napster knowingly ignore the fact that songs belong to someone, and that this practice is little different from outright theft. While the songs are intellectual property, there is also a ton of revenue that is being withheld from the artist every time a consumer steals their song.

Consumer responsibility is an issue that always existed, but one that grows exponentially with the release of new technology. In colonial America, stealing was a personal thing. In 21st century America, a teenager could steal 30 albums while he is fast asleep, letting his computer do the downloading all through the night. As Alison Mosshart of rock band The Kills puts it in Rolling Stone: "finally fans have more power than the advertisers, you can't tell kids what to buy anymore without them checking it out first and possibly stealing it. If you're a really

The ethical issues here extend far further than the file-sharer in this case. The people who download songs are not as ethically responsible as those who facilitate it, but are still certainly complicit. The RIAA, for all its greed and corruption, (for record labels are notoriously corrupt and duplicitous) is also in violation of ethics, because it is using the concept of intellectual property to fine people inordinate amounts of money. Such is the case of a woman who was fined $300,000 dollars for having 27 songs.

Given that Napster allowed and created the blueprint for people to steal music online, it is still the consumers that should be held responsible for doing so. Napster stated in the case study that its original intent was for people to share their own songs with one another, and this is a perfectly ethical goal. The fact that it is so easy to use the program as a vehicle for theft is an oversight on Napster's part, but they by no means force anyone to misuse the program. The oversight is a very large one, and ethically part of the burden is theirs because they did nothing to prevent copyrighted material from appearing on their network. Still, the consumer should know better, and behave more responsibly.

Another ethical issue is that of the terms of agreement. "The RIAA declared that Napster, while forcing users to accept the terms of agreement, was primarily used for illegal purposes." The terms of agreement prohibited users from sharing copyrighted material, but did not actually prevent them from doing so. In essence, Napster "was facilitating copyright violations against its own stated commitments" (80). The firm Lutzer and Lutzer argued that since it had legal purposes, the RIAA's copyright infringement suit was a "stretch." This speaks to the point that the burden is again on the consumer, for they are using a legal software for illegal purposes. The lawyer's dismissal of a case in which million's of artists were affected because of illegal downloads reminds us that even the lawyers who are well-versed in the law are not always incredibly ethical, and do nothing to conceal this fact.

Though in the end the responsibility lies on the consumer, the RIAA is being unnecessarily ruthless in their pursuit of offenders, and forcing them to overcompensate for the music they have. This attitude, which causes the RIAA to be viewed by many college students as an Orwellian "Big Brother," does not foster any positive emotions for itself. "The Recording Industry Association of America said its member companies filed suit against two students at Rensselaer Polytechnic Institute and against one student each at Princeton University and Michigan Technological University." The students did have networks that hosted 2.5 million songs on the networks, and this would cause a great loss in revenue to the RIAA. However, the RIAA asked for "the legal limit on damages in such cases, $150,000 per each copyright infringed" (Wired 1). This is an outrageous number, because if one does the math, the RIAA is asking for $375,000,000,000. 375 billion clearly does not reflect the real loss in revenue, and only serves to make record labels seem greedy.

Ethically, everyone involved here is at fault. The consumers are most responsible, because they are stealing music simply because of the ease with which they can, and because the chances of getting caught are slim. Another reason they are so willing to steal is because the record industry has made prices for CDs so high in the first place. Napster could not have caused such a problem if there was not one already budding. The RIAA is at fault because it knows it cannot catch everyone, and is making the people they do catch pay far more damages than they should have to. In the end, their losses will balance, but the illegal downloader is rightfully portrayed as a victim in this case. The line of ethics is one that is often drawn because of indiscretions. In this case, there were many indiscretions, but the most glaring one, and the most unforgivable, is the unsolicited theft of the art of millions.

SOURCES:

http://www.wired.com/science/discoveries/news/2003/04/58340