Justice for all?

Robert A Delfino takes Metallica’s argument against Napster seriously

Lars Ulrich (cc) Kreepin Deth

Lars Ulrich (cc) Kreepin Deth

“When somebody fucks with what we do, we go after them.” Thus spoke drummer Lars Ulrich in an interview about Metallica’s lawsuit against Napster. Other than the complete absence of guitar solos on St. Anger, nothing has hurt Metallica more than the Napster fiasco

In 1999 Shawn Fanning, a freshman at Northeastern University, stayed awake for 60 hours straight writing the code for a program that would change the music scene forever. Napster, named after its author’s nappy hair, allowed people to connect to its centralised file server and share music. The genius of Napster was that its server did not host any songs at all. Instead, it simply provided a listing of songs that were on other people’s personal computers and allowed you to download directly from them for free. Word spread and soon millions of people were sharing music over the Internet.

It didn’t take long before recording artists, music labels, and the Recording Industry Association of America (RIAA) began to complain. The RIAA sued Napster in December 1999, arguing that it was helping people to pirate copyrighted music “on an unprecedented scale”. A few months later, in April 2000, Metallica sued. Lars went on record saying that users of Napster were “trafficking in stolen goods” and that this was “morally and legally wrong”.

Initially, Napster was defiant. The company refused to remove Metallica’s content from its listings unless “Metallica could provide proof of specific violations”. So Metallica hired NetPD, a British company, to monitor Napster. After a 48 hour period they had catalogued 1.4 million violations. A few days later Lars Ulrich personally delivered thirteen boxes of documents that fingered 335,435 Napster usernames who were trading Metallica songs. Within a week Napster had banned most of those users. The legal battles dragged on until July of 2001, when Metallica finally reached a settlement with Napster. But the damage had been done, and things would never be the same for Metallica or its fans.

Were the fans right to be angry at Metallica? Or was Metallica right to take action against Napster? From the beginning, Lars claimed, “This is not just about money.” But many fans didn’t buy that. His comment implies that it is partly about money. This interpretation is supported by other comments that singer and guitarist James Hetfield made during an online chat: “Would you go do your job five days a week for absolutely nothing, just to do it?…This could kill Metallica and music if we were doing it for free.” But then, shortly before he was to testify in front of the United States Senate in a hearing on Internet music distribution, Lars said: “It’s just got nothing to do with money.” Nothing? First, he implied it partly dealt with money. Then James made it seem that it was all about money. Now it had “nothing” to do with money. Which was it?

In fairness to Lars, I believe it is possible to resolve his seemingly contradictory statements. Lars’s point appears to be that Metallica was not suing Napster in order to win a sum of money. Metallica already had a lot of money, and any money they were losing to Napster was “pocket change”. But the lawsuit was about money in the sense that artists’ work should be protected so that they could earn a living. Metallica was simply standing up for artists’ rights. This interpretation is supported by Lars’s clearest statement of this point: “It’s about the principle of the thing and it’s about what could happen if this kind of thing is allowed to exist and run as rampant and out of control for the next 5 years as it has been for the last 6 months. Then it can become a money issue. Right now it’s not a money issue. I can guarantee you it’s costing us tenfold to fight it in lawyers’ fees, in lawyers’ compensation, than it is for measly little pennies in royalties being lost, that’s not what it’s about. … Where it can affect people, where it is about money, is for the band that sells 600 copies of their CD, ok? If they all of a sudden go from selling 600 copies of their CD down to 50 copies, because the other 550 copies get downloaded for free, that’s where it starts affecting real people with real money.”

The focus on artists’ rights not only helps explain the quotations about money and earning a living, but it also explains Metallica’s talk about “control” and “property”. On July 27, 2000, after a District Court ruled in Metallica’s favour, the band issued a statement: “We are delighted that the Court has upheld the rights of all artists to protect and control their creative efforts.”

Metallica was making a moral argument that artists, because they create and own their art, have certain rights. These include the right to sell their art, to control how it is sold, and to decide if they wish to give it away for free. What troubled Lars was that people were acting as if “they have a right to any piece of information that comes to them through the Internet”. Had he been talking about physical property, such as a car, I doubt many would have disagreed with him. After all, no one wants their car stolen.

What is important about the Napster case is that it involved intellectual property, not physical property. Napster’s central file server did not even store any songs. It just helped individuals trade digital songs with each other. How ironic then that Metallica was now against music trading when it was the underground tape trading of their demo No Life ‘Til Leather that led to their success. How could Metallica, a band that encouraged fans to “bootleg” their own shows, be against Napster? Was this hypocrisy? Was there a contradiction within Metallica’s argument against file sharing?

Because artists own their music they also have the right, if they wish, to give it away for free. So the fact that Metallica gave away their demo No Life ‘Til Leather and encouraged others to copy it and spread it world-wide was not a contradiction. When Metallica performs live that is also their music. So if Metallica permits fans to “bootleg” their concerts that is their right as artists.

The contradiction lies in Lars’s position on “home taping”, which was popular in the 1980s. For example, my friend owns Iron Maiden’s album Piece of Mind. I borrow it and I like it—but I don’t want to spend the money to buy it—so I just copy it onto cassette tape. Since Iron Maiden has not given me permission to copy their music, and since I have not paid for it, one would expect Lars to argue that this type of activity is wrong. But he didn’t. Instead, he seemed to say it was ok for several reasons.

His first reason is that the quality of cassette tapes is not that good, and when you copy a tape there is a loss of sound quality. His second reason is that the scale (quantity) of tape trading is much smaller than Napster. But I think these arguments fail.

Isn’t it true that cassette copies can still have good quality? I remember listening to And Justice for All during High School on cassette. (I bought it in case you were wondering.) I listened to it so many times I wore out the tape so I bought it again! But the second time I bought it I copied it onto a chrome cassette tape and listened to the copy so that I would not have to buy it again. Let me tell you that copy still sounded damn good.

So I think Lars’s first argument about tape quality fails. Many people were enjoying second and third generation tape copies during the 1980s. If stealing songs is wrong it should not matter whether you steal them on tape or by mp3. What level of quality is needed for the copying to be ok anyway? And who decides what level of quality is enough? By the way, Lars was mistaken to call the mp3 files of Metallica on Napster “perfect digital copies”. While it’s true that mp3s don’t degrade or wear out, mp3 is a “lossy” format that contains less information than the CD. At high bit rates many people cannot tell the difference between an mp3 and the original CD, but at low bit rates mp3s can sound crappy, especially for heavy metal. “Squishy” cymbals, anyone?

Lars’s second argument about scale (quantity) also makes no sense. While he is correct to point out that Napster helped people trade at higher volumes—literally millions of files over a weekend—this would just mean that Napster was far worse than home taping. It does not let home taping off the hook. If stealing songs is wrong it is wrong whether you steal two songs or two million.

Aside from the home taping point, Metallica did have a logically consistent argument against Napster and file sharing. But just because something is logically consistent does not make it true. Was Metallica correct to suggest that the act of artistic creation carries with it certain rights?

Metallica appeared to endorse what is sometimes called the labour theory of property rights. In his statement before the US Senate, Lars said: “[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.”

Lars is arguing that a person has a right to the fruit of his or her own labour. Centuries earlier, John Locke had argued for the same in Two Treatises of Government: “The labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property.”

Some philosophers have argued that there are serious problems with the labour theory when it is extended to intellectual property. For example, Tom G Palmer points out that Locke’s argument for private property is based on a person’s right to their own body. Intellectual property, according to Palmer, restricts how people can use their own bodies. Therefore intellectual property contradicts Locke’s initial point that we have a right to our own bodies. For this reason Palmer thinks that Locke’s theory cannot be used to defend intellectual property rights. Using music as an example, he explains, “[A] copyright over a musical composition means that others cannot use their mouths to blow air in certain sequences and in certain ways into musical instruments they own without obtaining the permission of the copyright holder. Thus the real objects the copyright holder controls are the bodies and instruments of the other musicians.”

Is Palmer correct? No. One of the first songs I learned to play on guitar was Metallica’s “For Whom the Bell Tolls”. According to Palmer, since Metallica owns the copyright to that song I must ask them for permission to use my fingers to play certain power chords in certain sequences on my guitar.

But that is not true! I am allowed to play their songs in my house and with my band in my basement. Why else would stores sell guitar tablature books if people were not allowed to play songs? What I cannot do is perform Metallica songs with my band for profit in a club without Metallica’s permission. But that is hardly a serious restriction of my rights to my own body.

I would need more space than I have here to defend Metallica’s argument for artists’ rights using the labour theory, but I think it can be done. What is important is that Metallica had the courage to be the first musical artist in the Internet age to put forth this argument. For that they took a beating. Was it worth it?

In the song “Shoot me Again” Lars’s lyric refers to the Napster controversy, posing the question: What difference did I make? Let me supply an answer: Metallica did make a difference. They initiated an important debate about the ethics of file sharing while it was in its infancy. They were able to bring millions of fans into the debate in a way the RIAA could never have done. And they advanced a philosophical argument about artists’ rights that I think is basically correct.

Sure, they could have done all of this in a clearer and less confrontational way, but hey—they’re Metallica—not Britney Spears! The fact that they remained true to their convictions despite heavy backlash only enhances their legacy.

Excerpted and edited from Metallica and Philosophy: A Crash Course in Brain Surgery, edited by William Irwin (Blackwell-Wiley)

  1. Interesting essay, but I’m left a bit confused. You imply that Metallica can in some way own “certain power chords in certain sequences.” Perhaps it’s because I don’t know what “power chords” are, but certainly I should think I can take a large portion of a piece’s chord structure and duplicate it into some piece of my own without being accused of pilfering.

  2. Last night, I listened to two versions of The Undertone’s “Teenage Kicks”: a ukulele version and an online boot of the original, so it was well embedded in my head.

    Then an hour later, I heard a local band playing on the college radio station, and after a verse or two realized that the rhythm guitarist was playing “Teenage Kicks” at a slower tempo.

    Does he owe The Undertones some money?

  3. i personally would say that a band has rights to the song, for example, but not the format of the song on a disc or mp3 player, nor the actual location that song “is”. when i buy a cd the rights to the physical location and the data-composition should (im not a law student so i cant be sure) fall to me, as i have just paid to possess a copy of a song. that makes it “my” copy of “their” song. i would as such in no way contravene their intellectual possesion of that song by changing the medium it is stored, or personally copying it. if i give a copy to another, i am gifting them the specific mode of storage or data-medium, as such the copy of the song still belongs to me, but the particular disk now belongs to another.

  4. While I confess to being guilty of as much ilegal downloading as I can get away w myself I. Agree w t author that metalica does have t right to their work and that it is importent.

    Here is a case where it is inarguably very important. It takes millions (even billions) of dollars to make an antibiotic. In a sence it is only this first pill that costs so much. Every pill that follows costs only a few pennies. This cost has to be spread out over a run of pills or even all of them as otherwise no one would ever buy this first.

    Generics or overseas producers donot incur any costs involved in this 1st pill. But if we only had generics and these overseas producers then there would be no one to ever develope these pills to begin w.

    It is only that a developer is considered to own intelectual property rights to t formula that insentavises these developers to invest t money required to get new drugs developed to begin w.

    There is a rather complicated set of rules governing how and when generics can be made in an attempt to be fair to all parties involved.

    And again, if a loved one of mine needed this drug, I would probably buy it as cheaply as posible. On t other hand I would be grateful that whoever developed it initialy had enuf expectation of making their money back to have developed it in t first place.

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