Sometime during the Pleistocene epoch, one of our distant teenage cousins lifted a mastodon bone and started banging it rhythmically against a stone. For the first time, rudimentary music invaded the quiet recesses of Cro-Magnon man’s cave. Shortly thereafter, Cro-Magnon woman probably told him to knock it off and go outside, although no cave paintings exist to immortalize that moment. A less discerning person might conclude that such were the humble beginnings of rock music, but I, of course, would not stoop to such a pun.

A lot of music has been created in the intervening years. Every culture on every continent shared in its creation, and some form of music is revered by just about everyone. Only recently, however, have we been privileged to listen to a piece of music more than once.

Perhaps Edison didn’t specifically intend it, but when he introduced the phonograph in 1877, he also kick-started the recording industry. Capturing music for resale has grown into a $40 billion-a-year mammoth that makes a good deal of its money from the noise-loving descendants of Cro-Magnon teen. The formula is simple: teens + music = profit. Enter Gen Xers, a technologically astute and ethically pragmatic generation. As the music industry was distressed to discover, while most Gen Xers know little about the history of music prior to, say, last year, millions of them are acutely aware of the single biggest musical breakthrough since Edison patented sound reproduction: MP3.

Ironically, you can’t even hear MP3, because it’s a music compression algorithm. MP3 is the short version of ISO MPEG-Audio, Layer-3, and was formulated by German professor Karlheinz Brandenburg. Brandenburg certainly didn’t intend to kill the industry that Edison didn’t intend to start, but MP3 is now the preferred format for downloading music from the Internet, and the recording industry is apoplectic. With MP3, anyone can download his favorite music for free.

Five labels—BMG Entertainment, EMI, Sony, Universal, and Warner Music Group—control material copyrights and distribution rights for most of the music industry. When Michael Robertson founded MP3.com and, with the addition of my.mp3.com, made an 80,000-digital-track library available for remote listening and downloading, the labels were not at all pleased. Robertson, it seems, neglected to seek permission from the copyright holders or pay a single farthing to the artists or their publishers for the material. Instead, he relied upon users to confirm that they had rights to the songs they listened to. Using an industry front group, the Recording Industry Association of America (RIAA), the labels sued MP3.com for a whopping $6 billion. Robertson needed no algorithm to decode

the tenuousness of his position, nor could he fail to notice the judge’s vexation with his enterprise. “The complex marvels of cyberspatial communication may create difficult legal issues,” said the presiding jurist, “but not in this case.”

Moving to avert the inevitable, Robertson settled, agreeing to pay $100 million in damages and reaching licensing agreements with two of the labels: BMG Entertainment and Warner Music Group. He further agreed that his future customers would be allowed to listen to the music available on his site but would not be permitted to download it. And MP3.com would pay a small royalty each time a piece of music was played.

What seemed like a clear-cut victory for the music industry, however, was rendered all but meaningless by the next incarnation of the MP3 concept. The MP3 algorithm had become the fountainhead of an Internet movement advancing free online music distribution. Its newest progeny is the infamous Napster. Napster still uses the MP3 format for digital compression of music files, but unlike MP3.com, it is not an online database of actual recordings. Napster is much more clever and less litigable because it only provides users with links to member computers that already happen to have a desired song available and are currently online. The user simply downloads the Napster software, selects a song, and receives a list of the available machines that host it. When a song is selected, Napster contacts the host, then downloads the music directly to the user’s hard drive free of charge. If MP3.com was an irritation, it was also an easily identifiable target with a relatively modest 500,000 users. Napster has an estimated 75 million users with about a million songs available for immediate downloading. Rather than ally itself with this new distribution technology, RIAA again showed an appalling lack of understanding of the Internet. Nor did it appreciate the ethical standards of its younger users and the uncontrollable nature of open-source file-swapping technologies. RIAA sought a preliminary injunction against Napster, arguing that the site should be immediately shut down for copyright infringement and piracy. Napster initially lost and then was able to squeak out a stay of execution. A final disposition is pending.

In seeking legal redress, RIAA was joined by several artists, most notably Metallica. Metallica was irked because, while the group was working on the sound track for Mission: Impossible 2, six in-progress versions of the song “I Disappear” were available on Napster before the final cut was even released.

Metallica proved to be more imaginative than RIAA and also sued a number of deep-pocket universities, including Yale and USC, where Napster was widely used by students to download tunes using school equipment. Some 120 universities responded by banning Napster, and not solely for reasons of legal exposure: On some campuses, over half of the computer resources were eaten up by students downloading music. Metallica also threatened to bring suit against 335,000 of its fans, although it later decided not to bite the hands that feed it.

Napster was now so big that legal posturing was likely to have a limited effect. Besides, the technology hare had again raced far ahead of the litigation tortoise. Open- source programmers had already developed the next generation of digital music-swapping software. More sophisticated than Napster, products like Gnutella and Freenet are essentially distributed file-sharing systems. There is no longer a need for a host site such as MP3.com or a clearinghouse such as Napster. Gnutella is fully anonymous, hosted on private machines by swarms of unknown users who wish to swap sounds. The RIAA may strenuously object, but without some form of intrusive Internet-wide policing, it will find no one to threaten, no one to sue. There will be no deep pockets to plunder, no dot-com venture capitalists to assail, and no possibility of subscription fees.

And just when things couldn’t get much worse for the record companies, along comes Courtney Love. In a speech before the Digital Online Hollywood Entertainment Conference in New York, the actress and lead singer of Hole railed against piracy, but not the piracy of compression algorithms and rogue Internet sites. Love charged that the entire recording industry is based on piracy—the piracy of the artist’s work by the record companies.

Love contends that the RIAA, in a sneaky and unethical move, reduced recording artists to the stature of “sharecroppers.” Last November, with the RIAA’s prompting, Mitch Glazier, a Congressional aide, attached a “technical amendment” to the 1978 Copyright Act. It was attached to an unrelated bill called the Satellite Home Viewing Act of 1999, well after public hearings on the bill had concluded. Under the original 1978 Copyright Act, artists could reclaim the copyrights on their work after 35 years. If the artist was no longer living, the copyright would pass to his or her heirs. Glazier amended the act so that the record companies would now own the works in perpetuity.

“Stealing our copyright reversions in the dead of night while no one was looking, and with no hearings held, is piracy,” said Love.

Shortly after the bill was signed into law, Glazier left Congress and went to work for RIAA as its chief lobbyist.

Love believes that the issue has always been one of distribution and control and that, until the advent of the Internet, the mega-companies held all the cards. Artists needed the labels because they had no other possibility of accessing a mass audience. The labels controlled record and CD distribution channels, determined what would be played on the radio, organized tours, and provided publicity. They also contractually limited what an artist could earn.

Say a hot group of four musicians signs a contract with a million dollar advance and 20 percent royalty. Love describes the process: “They spend half a million to record their album. That leaves the band with $500,000. They pay $100,000 to their manager for 20 percent commission. They pay $25,000 each to their lawyer and business manager. That leaves $350,000 for the four band members to split. After $170,000 in taxes, there’s $180,000 left. That comes out to $45,000 per person.”

Love estimates that if the group is successful and sells a million copies, the label will net $6.6 million after expenses. “The band,” she says, “may as well be working at a 7- Eleven.” Indeed, a number of groups like TLC have been forced to declare bankruptcy after receiving “less than 2 percent of the $175 million earned by their CD sales,” according to Love.

The Internet, she believes, is the equalizer. It allows artists to contact an unlimited audience and market their own music without costly middlemen. She announced that she is leaving the labels and going out on her own, trusting that her fans will pay a modest sum for her work and that volume will more than make up for unit price. She invited other artists to join her.

If she should become successful on the Internet, you can be certain others will follow and the import of the labels will decline. In the meantime, there is a legal and an ethical issue. The legal issue is presently unenforceable. As for the ethical question, the record companies, it seems, have done their part to teach our newest generation that ethics are conditional and ancillary to profit and convenience. They should not be surprised when people behave as if that were true.

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