Tag Archives: media law

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The Internet and the free trade of information after Napster

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A response to Taking Sides – Clashing Views in Mass Media and Society – Issue 15

This chapter’s debate is over the internet as a free trade of information (specifically via Napster).  Writing for the affirmative, Andrew Sullivan argues that file trading over the net is not stealing and might just make communism possible.  The lawyers for the recording industry, on the other had, argue that those who own the rights to the files traded need protection and deserve damages.

Sullivan is almost entirely optimistic about the ability of the net to act as a public space open to everyone.  Even the few sites which required payment are now becoming free, and people can copy the pay site’s content and send it outside anyway.  This, for him is a way to get around Marx’s dislike of the way capitalism values people only by monetary worth.  It also abolishes property in some ways, which Sullivan sees as helping to eliminate greed and profit motive in human interaction.  Soon musicians, journalists and others will remember their love for their professions and not mind going without a paycheck.

The recording industry lawyers, however, are not so cheery.  They point out that Napster facilitates music copying without paying copyright holders, that sales in Napster-saturated markets are down, and that Napster does so knowingly and at an enormous scale.  They argue that Napster was designed for the sole purpose of piracy and that it is their current business model as well.  Although Napster has yet to make any revenues, the lawyers argue they have gotten a financial benefit through piracy via venture capital, stock price and audience acquisition.

Sullivan, I think, has missed the point almost entirely.  I could go on for pages (and will in my paper), but basically his notion that the web is divorced from money is ridiculous.  Newspapers don’t charge because they make money off advertising-so they, along with the rest of the net, try to track you, market to you, sell data about you, etc., and if they don’t they fold.  Web traffic is going increasingly to those with money and power.  Also, so long as food and rent cost money, no writer or musician will forgo paychecks.  Sullivan seems to think you can live off MP3s alone.  My paper is about the internet’s function as a public space, it has more limitations than he recognizes-for example, not everyone can afford a computer or a net connection, which leaves a lot of people out of the public debate.

The Napster lawyers are also full of crap in a lot of ways.  These two essays really are at opposite ends of the spectrum-Sullivan is a naïve Marxist and the lawyers are cunning corporate-capitalists.  Note that in their public statements and in much of the press coverage, the recording industry represented this as a case of taking money from Metallica or the Rolling Stones or whoever, but in the brief copyright ownership is the key concept.  Most musicians get pennies for each CD sold, and some get nothing-with giant corporations, who control the entire distribution network, fixing prices at $17 each.  Napster, in fact, does little to nothing to hurt the average musician, but it’s possible (the lawyers’ proof is not rock solid) it hurts the corporate music oligarchy.  So it hurts non-human entities which create nothing but take all the wealth by dominating and controlling the market-excuse me if I’m not crying.  When the lawyers mention that Napster intends to make CD stores and the RIAA obsolete, it becomes pretty clear-since when has it been illegal to make an outdated system obsolete through technological innovation?

If the court is really interested in serving the public interest, it would pursue antitrust action against the RIAA and rewrite the copyright laws.  It is becoming harder and harder for a person who actually creates something, whether it’s an album, photograph, novel or article, to retain ownership to it.  Corporations, via concentration of ownership and agreements, are now demanding perpetual copyright ownership even from freelance workers who are traditionally protected.  Copyright law was intended to encourage creative and inventive people by giving them ownership of their work, but that rarely happens anymore.

Freedom of speech, mass media, and debate

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A response to Taking Sides – Clashing Views in Mass Media and Society – Issue 8

In the affirmative argument, Kathleen Jamieson argues that the First Amendment has protected the media and allowed it to cover many sides of issues, even sides the government might want to suppress.  In the negative response, Thomas Patterson says the mainstream press hasn’t fought for its own freedom, routinely excludes unpopular opinions, and is more concerned with dollars than debate.

Jamieson thinks the press has the freedom and contains the robust debate the framers intended when they wrote the Bill of Rights.  She cites the case law progressively strengthening this right and also the development of broadcast law, which has as its heart a notion of opening discussion for the public good.  Watergate and the Pentagon Papers provide two good examples of the press using this power to defend citizens against the government.  Political speech that offends and may even seem irrational today is protected as vigorously as the political speech of the part in power.  And voters today are exposed to many different sides-everyone from Marxists to Buddhists to Bill Clinton in the 1992 primaries, for example.  The development of technologies has broadened communication and debate as well.

Patterson says Watergate and the Pentagon Papers are an oasis in a desert of mundane mainstream press practices.  The mainstream press has not been the driving party in many First Amendment cases, and has been played like a fiddle by people like McCarthy.  The press control the government orchestrated in the Persian Gulf War is a good example of the media’s willingness to be controlled; only the alternative press protested.  Patterson argues that individual publications and broadcasters have displayed little interest in public debate and more in being able to exclude opinions they don’t like.  And finally, he says the press is more interested in making money than anything else.  Television and competition for customers have dumbed down news more than opened debate.

What interests me about these articles is how both look at the same case law and come to different conclusions.  Jamieson sees Miami Herald v. Tornillo as the court defending the press’ right to refuse to publish even if it’s in the state’s interest.  Patterson sees the same case as strike against hearing all sides in a political debate.  Jamieson sees the series of cases defining the First Amendment as the government’s (or at least, the court’s) struggle to guarantee free expression; Patterson says the mainstream press are rarely the ones fighting for the freedoms they enjoy.  Patterson’s point is interesting and I wish someone had thought of it while I was in media law class.  Why is it that the mainstream press has not been on the front lines of its own freedom?

I think Patterson’s final point, about commercialism over communication, deserves its own chapter.  Giant corporations and profit-minded individual ownership of mass media helps narrow the marketplace of ideas in key ways.  I’m going to make this point in my paper, too, because I think Internet news may be even more apt for this-most people get news on the internet from companies that have never had anything to do with news (Microsoft, AOL, Netscape).  Though they outsource to more traditional providers (AP, Reuters, etc) they’ll happily go with the lowest bidder and have no sense of journalistic mission whatsoever.