Column: Napster's nosdive is no tragedy

SAN FRANCISCO - What is intellectual property? A term. What is that term? Air.

If Shakespeare were alive today, he could consider suing me for downloading and bowdlerizing his lines from ''Henry IV, Part I'' (Act V, Scene 1).

But the playwright hasn't earned a farthing these last 400 years, so he'd be penniless - and therefore lawyerless in court. My team of the slickest suits in this blessed plot, this earth, this realm, this city of San Francisco (''Richard II,'' Act II, Scene 3) would send him back to where he came from, the 16th century.

Not fair? Who says? How can you claim ownership of intellectual property? It's not real estate or cash. You can't eat it or wear it to the beach. It won't fetch or let you tickle its tummy. It's an abstraction, a blueprint, air.

So bite me, Bard.

This is the essence of Napster's Falstaffian defense against the U.S. recording industry's charge that it has essentially stolen the labor - the blood, sweat and tears - of thousands of artists, some of them rich and famous, most of them starving.

We've been hearing the San Mateo-based upstart company make this argument in various forms since December, when the Recording Industry Association of American sued it for copyright infringement, claiming Napster has cost the industry over $300 million in lost sales.

The suit sparked a debate over the rights of artists and record companies at a time when Internet users can replicate and distribute, at no significant charge, not only visual symbols but pictures and sounds with near-perfect clarity and amplification.

Why should the public purchase 100,000 copies of Sting's newest CD when it can purchase just one, put it on the Internet and download it 99,999 times?

We heard the argument again last Wednesday, in the San Francisco courtroom of U.S. District Judge Marilyn Patel, who didn't buy it and granted the preliminary injunction sought by the association.

Patel's decision would have effectively shut down Napster if two federal appeals judges hadn't immediately overruled her, pending further arguments in September.

''They've created a monster,'' Patel commented.

Well, that depends on your perspective. ''Genie'' might have been a better word.

There's a lot at stake for Napster, which has parlayed an electronic sleight of hand into a company with an estimated potential market value of $1.5 billion to $2 billion, despite the fact that it takes in no revenue.

One might say Napster deserved a swift kick in the teeth for its parasitic behavior in the marketplace. But there is a problem here. It's hard to think of the music industry as a victim.

Big record companies have been gouging artists and the public for decades. I remember buying Buffalo Springfield albums for $1.79 on sale and The Doors' ''Strange Days'' for $3.79. Now the cost of a CD is about the same as a three-course meal.

But CDs at $20 or so today still generate nickels and dimes for most artists, who sell themselves into slavery to get a break. Give an 18-year-old a few thousand bucks up front and he thinks he's died and gone to heaven.

It's really the corporate bosses - the recording companies, distributors and retailers who make the serious dough every time another Kurt Cobain pops onto the scene.

It's a wonder more musicians aren't blowing their brains out, given what lies ahead for even the most talented and dedicated among them - long hours in the studio and, if they're very good and very lucky, maybe a miserable tour as a warmup act.

Next time you're walking down the street and you hear a band in a garage, knock and ask what it takes to make it commercially. You'll be shocked at how much is required and how little is given back.

'A free ride on Napster? Sure, we want it. That may be the only way anyone hears us. Plus, we don't have to sell our souls.'

So if the Recording Industry Association of America is right in the Napster case, that doesn't mean Napster is villainous. It's more like Robin Hood - taking from the rich, giving to the poor and, incidentally, making itself rich on paper in the process.

Still, there's a principle at stake here and it should be defended. Jokes aside, intellectual property is worth a great deal, even if it is, at bottom, just a blueprint, a road map, a castle in the air.

Thinking is sweaty work and the large body of federal copyright law affords it extensive protections. These include a 95-year ban on unauthorized use for works created before Jan. 1, 1978 (bite me again, Bard your oeuvre has been in the public domain here in the Colonies for centuries).

Hilary Rosen, president and CEO of the association, said the lawsuit will prove to be a ''seminal Internet case.'' She predicted any precedent set now will shape artistic and merchandising decisions in the emerging wireless age.

A final ruling that would permit Napster to continue doing business as usual, Rosen said, would basically scuttle the pop music market system, which rewards effort and investment with appropriate returns, and protects those returns through copyright law which Napster was blithely ignoring.

Rosen insisted it isn't a question of the entrenched powers refusing to recognize that new technology has changed the game. The issue, she said, is whether the net ''coexists'' with intellectual property or ''tramples it.''

She's right - even if the powerful economic interests she represents have done wrong in the past.

(Distributed by Scripps Howard News Service, http://www.shns.com.)

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