Keeping Up With the Napsters


“As a newcomer to the list, I really enjoy your collective thought process. In particular, I love that the world is quite obviously changing before our eyes and no one really knows how it’s going to play out!” The post, by Jeff Suhy (cyber-Ramones e-mail tag: Pynhead), is one of a thousand generated monthly by the Pho discussion list. Pho is a forum devoted to pop’s new flashpoint: MP3s and Napster, the downloading of music now and everything else soon. Bigwigs like Pam Horovitz, the president of the National Association of Recording Merchandisers, echo Suhy’s sentiments: “The dialogue here is the most helpful I’ve heard anywhere.”

On Pho, Hilary Rosen of the Recording Industry Association of America jousts with Michael Robertson of over the RIAA’s lawsuit to stop, the online CD storage service. Marketing VP Liz Brooks defends Napster, the MP3-sharing mechanism designed by teenage programmer (and Pho subscriber) Shawn Fanning that has transformed an abstract debate into an immediate threat. Record label sorts, new-media brass, music lawyers, reporters, artists, and interested onlookers—nearly 700 members—hash out everything from copyright reform to music-related IPO offerings and the latest antipiracy chip.

The truth, though, is that Suhy’s right: no one has a clue. Pho grew out of a weekly gathering at a Los Angeles Vietnamese restaurant hosted by Jim Griffin, director of technology at Geffen from 1993 to 1998 and now the head of his own start-ups, Cherry Lane Digital and OneHouse. Griffin was early to advocate for digital music: in his ideal future, we’d have access to all music, all the time, via streaming technology that would pay for itself either through a subscription model, like cable, or an advertising model, like radio. Music can’t actually be free, he’s famous for proclaiming, but it should “feel free.”

Increasingly, however, music simply is free: hundreds of thousands of MP3 files are copied daily by users of Napster, Scour, iMesh, Gnutella, and a host of other services that pay no licensing fees. The cost of a recordable drive to duplicate albums on your computer is no greater than a cassette deck and far more potent. The industry has responded with a tizzy of lawsuits: the RIAA, Metallica, and Dr. Dre have sued Napster, with a preliminary ruling for the RIAA just announced; the National Association of Broadcasters has sued the RIAA (over webcasting fees); NARM has sued Sony over hyperlinks inside CDs that divert buyers away from traditional stores. It’s a madhouse.

The great digital debate is constantly reshaped by an entrepreneurial explosion: a publicist recently listed 43 separate Web ventures seeking new ways to exploit (sorry, expose) underground bands. Pho, which you can join by e-mailing [email protected], keeps on keeping up, not least through the links participants supply: Linux Today, the St. Petersburg Times,, Roll Call, even the Advisory Committee on International Communications and Information Policy of the U.S. State Department. When the list, which dates back to January of 1999, is finally archived, it’ll be a historian’s dream. Still, the best part is the discussion itself, which starts out civil but regularly steams up.

A few writers stand out. Kevin Doran has promoted underground music for years, hates the major label “cartel,” and gleefully awaits “ubiquity”: culture without barriers. His compacted jargon-crunching reads like next-century rock criticism at times: “No fantasies that niche items will drive the market, but the cartelier that gets out front exploiting their micro-demo assets captures early-adopter share and critical tag-along tidal trend.” True enough, once you unpack it. And Doran is grounded enough to challenge the Pho cynics: he says of the lawsuits, “Have you ever known the US judiciary to ultimately rule AGAINST the engine of American ingenuity and innovation that drives our economy through history?”

David Weekly is another rad: as a Stanford freshman, his pioneering MP3-sharing site was shut down by Griffin, then with Geffen. Now a senior, he recently made headlines by posting the Napster code, then directions for circumventing collegiate bans on the service; a Florida school cut off access to his computer’s particular IP address. Selected for a Sexiest Geek Alive ballot, he also pulls out dazzling Jefferson quotes about the sharing of ideas (read: music) as nature’s benevolent gift: “No one possesses the less, because every other possess the whole of it.” His prediction? “It really is the hackers versus the music industry now, because the hackers are just consumers exercising their rights. . . . This is going to be really interesting to watch. . . . [rolls up sleeves].”

But the industry has its defenders too. Frank Davis, new-media director for Astralwerks, is fond of signing his posts “Your Resident Tool of the Cartel.” The hypocrisy of the debate galls him: “I would argue that ‘consumer’ is the current shield for new-media companies to hide behind when looking to boost their revenue stream based on content for which they do not have an agreement to use.” Dean Kay defends songwriters like himself, who’ll never be able to compensate for lost sales with the “ancillary revenue streams” that proponents of Napster vaguely predict. “You guys are fighting for the right to steal Ricky Martin and Backstreet Boys records for heaven’s sake—now there’s a cause likely to ignite Rosa Parks and Kent State-like confrontations.”

Pho writers pick apart cant from all sides: when celebrated easy-listening/classical pianist Ernesto Cortazar for gaining 2 million free downloads, Kay pointed out how few online sales he’d generated as a result. The Phosters are trying to brave an environment that breeds jargon as fast as start-ups: even skilled entertainment lawyers are unlikely to know instinctively whether a contract that includes a cost deduction for something called a “digibox” is justifiable. (Answer: maybe. InterTrust charges a bundle for its digital security service, but probably not as much as claimed.)

Internet developments mock the fundamental structure of the music industry: for example, is a freely downloaded song more akin to a radio broadcast or a record sale? Griffin’s hope is that the online debate, combined with weekly Pho gatherings in Los Angeles, New York, San Francisco, and the other branches that keep popping up, can promote a collegial resolution to these matters, rather than still more lawsuits. Doran compares the process to programmers’ open-source collaborations.

At the moment, constructive talk seems to have broken down and Pho, which Rosen complains “has mostly turned into a ranting vehicle,” is treading water waiting on actual judges. Kay wrote not long ago, “Jim, your well considered reasoning and eloquent rhetoric will ring hollow and be meaningless if and Napster prevail in court.” In fact, lost a district-level ruling on its My.MP3 case April 28, causing the company’s stock to plunge 40 percent. Then again, in the same week Limp Bizkit became the first major act to endorse Napster, accepting the company’s tour sponsorship.

Griffin figures that the majors, who plan to begin selling overpriced MP3 files this summer, will scurry back into their warrens after this “Digital Groundhog Day.” But the battle of digital will be fought one way or another. Those in the music industry would do well to remember that however heated its rhetoric gets, Pho is the gentle version. John Parres, Internet specialist for Michael Ovitz’s Artist Management Group and a main Pho honcho, hasn’t quite lost the faith:

“Uber-conclusion: Open the vaults; legalize the rarities: the live recordings, bootlegs, words-and-music, promo remixes—digitally undelete the deleted catalogs—open E-V-E-R-Y-T-H-I-N-G up to E-V-E-R-Y-O-N-E so as to increase global music consumption and thereby revenues. Cast off the 7.1¢ (3/4 rate!) deals-with-the-devil and liberate the stored performances masquerading as CD mechanicals. Let them all spread and grow like the viral revenue-generating wildfires they yearn to be (are!)

“Say Amen! People we are almost at the promised land, can’t you SEE it??”

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