Napster has joined the pantheon of Netscape, Hotmail, and ICQ as a software-cum-
social movement, and its growth shows no sign of abating any time soon. Needless
to say, anything this successful needs its own lawsuit to make it a full-fledged
Net phenomenon. The Recording Industry Association of America has been only too
happy to oblige, with a suit seeking up to a hundred thousand dollars per copyrighted
song exchanged (an amount that would be on the order of a trillion dollars, based on
Napster usage to date). Unfortunately for the RIAA, the history of music shows that
when technological change comes along, the defenders of the old order are powerless
to stop it.

In the twenties, the American Federation of Musicians launched a protest when The
Jazz Singer inaugurated the talkies and put silent-movie orchestras out of business.
The protest was as vigorous as it was ineffective. Once the talkies created a way to
distribute movie music without needing to hire movie musicians, there was nothing
anyone could do to hold it back, leading the way for new sorts of organizations that
embraced recorded music — organizations like the RIAA. Now that the RIAA is faced
with another innovation in distribution, it shouldn’t be wasting its time arguing that
Napster users are breaking the law. As we’ve seen with the distribution of print on
the Web, efficiency trumps legality, and RIAA needs to be developing new models that work with electronic distribution rather than against it.

In the early nineties, a service called Clarinet was launched that distributed news-
wire content over the Net, but this distribution came with a catch — users were never
ever supposed to forward the articles they read. The underlying (and fruitless) hope
behind this system was that if everyone could be made to pretend that the Net was no different from paper, then the newspaper’s “pay directly for content” model wouldn’t be challenged on-line. What sidelined this argument — and Clarinet — was that a bunch of competing businesses said, literally, “Publish and be damned,” and the Yahoos and News.coms of the world bypassed Clarinet by developing business models that encouraged copying. But other companies developed new models well after realizing that Clarinet’s approach was wrong, and they still took years to get it right. The idea that people shouldn’t forward articles to one another has collapsed so completely that it’s hard to remember when it was taken seriously. Years of dire warnings that violating the print model of copyright would lead to writers starving in the streets and render the Web a backwater of amateur content have come to naught. The quality of written material available on-line is rising every year.

The lesson for the RIAA here is that old distribution models can fail long before
anyone has any idea what the new models will look like. As with digital text, so now
with music. People have a strong preference for making unlimited perfect copies of the music they want to hear. Napster now makes it feasible to do so in just the way the Web made it possible with text. Right now, no one knows how musicians will be rewarded in the future. But the lack of immediate alternatives doesn’t change the fact that Napster is the death knell for the current music distribution system. The music industry does not need to know how musicians will be rewarded when this new system takes hold to know that musicians will be rewarded somehow. Society can’t exist without artists; it can, however, exist without A&R; departments.

The RIAA-Napster suit feels like nothing so much as the fight over the national speed
limit in the seventies and eighties. The people arguing in favor of keeping the 55-MPH limit had almost everything on their side — facts and figures, commonsense concerns about safety and fuel efficiency, even the force of federal law. The only thing they lacked was the willingness of the people to go along. As with the speed limit, Napster shows us a case where millions of people are willing to see the law, understand the law, and violate it anyway on a daily basis. The bad news for the RIAA is not that the law isn’t on their side. It plainly is. The bad news for the RIAA is that in a democracy, when the will of the people and the law diverge too strongly for too long, it is the law that changes. Thus are speed limits raised.