Judge Marilyn Hall Patel does what she thinks she has to do, I guess. Applying the letter of the law, as she reads it anyhow, last February she declared Napster illegal, and sent the RIAA cartel and that company off to determine the damages.
Napster claimed that the record companies do not actually own what they say they own and anyhow shouldn't be permitted to collude against it by refusing to grant reasonable licenses. Two weeks ago, Patel questioned whether the record companies have copyrights that apply to digital distribution of music, and said she'd permit Napster to fish for evidence that the companies collude.
Since the Federal Trade Commission has already declared the five major distribution companies a cartel, it's pretty obvious what would be found. Such fishing would do a lot to determine whether the RIAA has just been blowing hot air on the question of whether it owns all the music its member companies have ever laid their greedy paws on.
"The bad news is that Napster has neither the deep pockets, nor the stomach for continuing the fight, and agrees with the record companies that the case should be abandoned," according to The Register (www.register.co.uk).
Abandoned? One year ago, the obsessive bleat of the RIAA was that Napster destroyed the world of music as we knew it, sending recording artists into the gutters, destitute, and forcing songwriters and record producers home to wither away, since without the RIAA being able to make a profit, there was no longer any incentive to make musical recordings. If it continued, record execs would have to take cabs instead of limos. This year, the record companies want to give up the lawsuit without even figuring out how much money Napster owes? The cartel doesn't even want to use its Napster victory to set a punitive example for future "thieves?"
As a judge might wonder: Why is that?
Here's why. First, the cartel cannot afford scrutiny of its rights claims. Some of them rely upon highly selective interpretations of contracts. Even where it has clear contractual language, it has often obtained the master recordings without a clear title. Most important, many of those contracts have been breached in so many different ways that there is no way they would hold up under judicial, let alone public, scrutiny. (To strip it down: If you don't pay the music-maker you made the contract with, you don't own the rights the contract gives you.) Legal research might point the way for clever lawyers to do to the RIAA what the RIAA did to Napster. It might even open the door for artists to reclaim the material purloined from them. It might force the music world to deal with piracy as defined by Courtney Love: "Piracy is the act of stealing an artist's work without any intention of paying for it." She didn't mean Napster, she meant "major label recording contracts."
I don't know what this would mean for Napster, and I don't care. Napster is now a subsidiary of BMG, a member of the cartel. I care what it means for the right to listen to music, and the right to make it without having to be exploited by the pigopoly.
Pigopoly is a term The Register has coined, defined as "market condition formed by several extremely greedy oligopolists." Pigopolists aren't fools, either, so don't count on the issue being settled right away - the labels will stall 'til they exhaust Patel's patience, if necessary. But unless you're a fool, don't believe for a second that the RIAA owns what it controls, either. Stolen property doesn't belong to the possessor just because the possessor has the biggest gun in the room.
(c) Copyright 2000 Dave Marsh
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