This article was originally written in late 2001, published in the February 2002 issue of 14850 Magazine, and has recently been updated in August 2003

The wisdom of this plumbing quote has proven true time and time again, most recently in the realm of MP3 file-sharing and the recording industry's attempt to put an end to it. However, I'd not have learned this wisdom had it not been for a personally frustrating experience.

I turned 53 in August 2003 and love music just as much as anyone else. But, I was robbed of much of it. In storage, over 1,000 LP and 45-rpm phonograph records rest in various states of decay. However, this decay started in 1970 when I was promised (while in Southeast Asia) that the Navy would store them for me during my tour-of-duty in the combat zone. They did store them for me -- in a non-air-conditioned space and in the most hot and humid of environments. When I was finally discharged in 1973 and got my records shipped back home, I discovered that my collection was warped and/or had mold or mildew leeched into the grooves -- rendering the whole collection unplayable. The only reason I still keep them is for the aesthetic value of the album covers which were thick enough to survive. So, what to do?

In 2000, I found I had a fair amount of disposable income and decided to reclaim my musical past. My first stops were the music CD stores. Guess what I discovered? 60s-era music was largely unobtainable. And, of the music I could find, some of it was either re-recorded or remastered in such a way that songs bore no resemblance to the original sound that made them famous in the first place. After much grumbling about the predicament, my teenage son said, "Geez, Dad, why don't you just try Napster?" I replied, "What's Napster?"

My son and I headed for my record collection. One by one, we went through the albums/45s and made a list of the music I wanted to reclaim. And, in a 6-month stint of alphabetical searches on Napster for the obscure music of my generation, I reclaimed literally everything I was searching for. However, I must admit to downloading other music I'd not previously purchased ... and this brought me into the MP3 debate.

Liberals might consider MP3 file-sharing to be a "freedom of access" issue. Conservatives might consider it outright theft. Being a moderate, I dismiss both definitions. I consider MP3 file-sharing to be revenge. Everyone knows that the music-CD cartel has been ripping off the consumer for years. Finally, the Federal Trade Commission (FTC) figured it out and took the industry to court for violations of the Lanham Act. They estimated the ripoff at over $400 million ... a ripoff that started at least four years before Napster was even born. Then, the attorneys general of several states (led by NY Attorney General, Eliot Spitzer) figured it out and filed a class-action antitrust suit against the cartel. They estimated the ripoff to be considerably higher -- but more on this later.

Regardless of how Federal agencies or state attorneys general feel about this massive ripoff, I believe the majority of music consumers view the remedy in much simpler terms. While stealing is wrong under criminal justice, stealing from a thief who has already stolen from you invokes a certain "poetic" justice that I for one can appreciate. In short, the music-CD cartel had been flipping an unfriendly hand gesture toward their consumers for years. All the advent of Napster did was put a tool in the hands of consumers that allowed them to flip the same unfriendly hand gesture back in the cartel's direction. And, the file-sharing community has done this in spades. This, of course, is where the "plumbing" comes into play.

The music-CD industry knows all too well that their victories over MP3.com, Scour, and Napster are hollow victories at best. According to Wired Magazine, file-sharing activity has not gone down since the demise of Napster. It's gone up vis a vis other venues such as FastTrack (Kazaa/Grokster/iMesh), Morpheus, Filetopia (located in Spain), SongSpy, Gnutella & clones (ie. Limewire/Bearshare), and the OpenNap network of servers accessible via Napigator, WinMX and other utilities. And this doesn't count the sharing activities via "messenger" clients, IRC channels, and the outright downloading done via anonymous FTP sites, websites (including some in China and some openly operated by the Russian Mafia), and the various "alt.binaries" USENET newsgroups. Litigation, it appears, may disable some services. But others merely pop up in their places ... some in countries where litigation would be problematic at best. Knowing this, the music-CD industry has committed itself to more desperate measures to stem the tide of file-sharing ... by tampering with the plumbing of the digital music file itself.

Napster (now a Roxio subsidiary) will re-launch itself shortly ... perhaps before you even read this article. However, the availability of MP3 versions of songs will be dwarfed by the number of songs available in their new "NAP" format. You might not even be able to download these songs as permanent files, per se, but only as temporary files that can only be played by the new client's internal player. And, the music-CD cartel is slowly but surely attempting to switch to a copyguarded-CD format ... one that can be recognized as playable by most standard CD players but not by the more-picky CD-ROMs found in computers. They're banking on the theory, "What can't be played on a computer can't be copied on a computer." So, with all this plumbing being overtaken, you might be wondering where Scotty is in this scenario. As it happens, Scotty has always been around.

The tiny part Scotty holds in his hand is called a WAV. Regardless of what compressed format you're talking about, you'll find a WAV file at its root. And, the WAV format is non-proprietary ... meaning anyone can sell WAV file recorders. Although I initially used it for a different purpose (recording telephone interviews) and still use it for that purpose, I found a software tool with more formidible possibilities. The utility is called Total Recorder and it does only two things. First, it intercepts any digital audio signal on its way to a sound card and points it in two directions: (A) a user-specified hard disk location where it's saved as a WAV file, and (B) to the sound card. Secondly (if you wish), it converts that WAV file to an MP3 file. And, the software's $11.95 pricetag from http://HighCriteria.com won't break anyone's bank account. Consider two uses I've put it to.

My son brought me a music CD that was so scratched up it no longer played on his computer. He wanted to see if I could copy it with my CD-burning hardware/software before it deteriorated further. I couldn't. However, he was still able to play it on his portable CD walkman. I asked him if I could borrow the walkman. I plugged the headphone output into my sound card input jack, fired up Total Recorder, and made perfect WAV-file copies of each cut ... later burning them to a new CD that would play on his computer. Now, apply this scenario to the new copyguarded-CD format the industry is banking on to prevent copying. Another example.

A friend in North Carolina emailed me a news story from the News & Observer newspaper. A new audio security company had created what they called a copy-proof format. The music file and proprietary player software were actually one file containing both. Their website challenged people to download sample player/song files and crack them. Within one hour of visiting their website, and using Total Recorder, I emailed them back their two sample songs in MP3 format and told them exactly how I did it. I received no reply. And, two weeks later, their website was no longer online. Apply this scenario to the upcoming NAP-format and player.

Yes. The more they overtake the plumbing, the easier it is to stop up the drain. Alas, the music industry seems bent on moving forward with their new formats and new copyguards even though I suspect they're all doomed to failure ... thanks to the tiny little part in Scotty's hand called the WAV. The ultimate solution? Like it or not, file-sharing is considered theft by the courts. However, so is price-fixing (the FTC and multi-state antitrust lawsuit complaint). In short, there's no "good guy" in this scenario and the only thing we know for certain is who committed the crime first -- the music industry. If, all along, the industry had treated their consumer-base fairly, would MP3 file-sharing be as prevalent now? Who can say? But it's certain that no one likes being ripped off. And sometimes, anger provokes us to do things we wouldn't normally do.

Unfortunately, both the CD-cartel and criminal justice system continue to anger the music consumer. The Lanham Act, used in the FTC complaint, has no provision to assess monetary damages against the industry for its $400 million theft. That's a job for the Justice Department. But to date, no filing of charges against the industry has been made in criminal court. And, the multi-state lawsuit settlement (a civil not criminal court action) was a slap-in-the-face to music consumers. Here's a breakdown of the settlement:

The music industry agreed to give approximately $76 million worth of CDs to beneficial community projects and school music programs. Note that the worth part could be determined by the industry itself (eg., retail value, not actual value). And note that there was no specificity as to the types of CDs they were to provide. This means the industry could use this loophole to simply clear their inventories of slow-moving CDs (ie., accordian music, Croatian language tutorials, Milli-Vanilli CDs the industry couldn't sell after it was learned that they didn't really write or sing the music, etc., etc.).

The music industry agreed to give approximately $68 million in cash back to the plaintiff states for distribution to affected music consumers. However, prior to this distribution, state attorneys general were allowed to assess "legal fees" and "administrative fees" against the $68 million ... and these fees were never specified in writing. In short, the pittance amount to be returned to the victims of this ripoff was first subject to "deductions" ... allowing state attorneys general to be the first "pigs to the trough" as it were.

The music industry, therefore, has a lot of public relations work to do to reclaim the trust and confidence of their consumer-base. When that happens (if ever), the dividing line between what's good and what's evil will be restored. But, as long as they continue to pursue the file-sharing community for criminal copyright infringement when they themselves escaped criminal action for price-fixing, anger among music consumers will continue to grow. And, as a result of this anger, file-sharing will escalate to such proportions that the RIAA will find itself having created its own worst nightmare.

(1) My article said there's no "good guy" in this scenario. Before someone says, "Hey, what about the victimized artist?" let me clarify things. I have a lot of sympathy for indy-label artists who feel they are being ripped off by the file-sharing community. However, it does happen to be a fact that many indy labels are actually thankful for file-sharing ... to give music by their artists a global reach only the top-5 media cartel had before. But artists signed with the CD-cartel? No sympathy at all. Top-label artists are also music consumers, perhaps more-so than the consumer on the street. Unless they've been living in a cave, they should be more aware of the rip-off committed by the cartel. And artists who voluntarily sign away rights to their music, knowing full-well that the cartel will use those rights to fleece the consumer, are just as culpable for the rip-off as the cartel itself.

(2) This falls into the "guilty until proven innocent" category. The AHRA (aka The Audio Home Recording Act of 1982) gives music consumers the right to space-shift their purchased music. Example. Let's say I own a 45-rpm record of a Beatles song. AHRA gives me the right to record that song on a cassette so I can play it in my car, burn it to a CD I can play on a walkman, or even put it in MP3 format so I can listen to it on my computer. This "right" comes from the fact that I'd already purchased the song, the music company had already gotten their profit from that sale, and the Beatles had already received their royalty cut. As long as I use that song for my own purposes and don't transfer it to others outside my home, I'm not violating the law. The AHRA falls in line with later court decisions deeming digital music as "software" ... and legitimate software consumers are legally entitled to a backup copy of purchased software, irregardless of the source and form from which the backup copy originated. In fact, Microsoft lost a court case on this "backup copy" issue.

Incidentally (and much to their chagrin), the RIAA itself helped draft the legislation which became the Audio Home Recording Act of 1982.

In early 2000, my son was taking a sign-language class in high school. His class decided to put on a skit for the local community in which they'd "sign" the lyrics of popular songs from the 60s/70s while the music played in the background. He was assigned "Pretty Woman," the popular song by Roy Orbison. I have that song on a 45-rpm record ... an unplayable 45-rpm record. When I bought the record, the store got a profit, the label got a profit, and Orbison himself put a percentage of that in his own pocket. So, when my son asked if I could help him get the song, I popped onto Napster, downloaded it, burned it to a CD and gave it to him for his class skit. A week later, I logged onto Napster as usual (still looking for my lost music at the time) and was confronted by a red rectangle with a bolded message inside. I'd been BANNED by Napster. I followed a link for the explanation to this and found a complaint had come from Barbara Orbison, et al (the estate of Roy Orbison) to the effect I'd violated the estate's copyright. Did they first ask me if I owned the music? NO! Did Napster first check to see whether I was merely exercising my legal rights under AHRA? NO! They just banned me outright.

As it happens, I was able to find "unbanning" instructions on the web with considerable ease and was offline from Napster for just less than an hour. But, this goes to show you where technology has taken us. In the "electronic" court, there is no due process of law. In the "electronic" court, you are guilty until proven innocent.

(3) This falls into the "use it or lose it" category. The day after Victor Borge died, I wanted to download some of his favorite numbers and burn them to a CD. And, I did ... including a very rare live concert performed at the London Palladium in 1975. Did I break the law in downloading this concert? I suppose I technically did. But guess what? Columbia marketed the LP-record version of the concert for a few years, then marketed the CD version for a few more. But, no recorded version of this concert has been available for purchase for over ten years ... unless of course you're lucky enough to find an LP or CD in a used music store. If Columbia took me to court for copyright infringement, one of their legal requirements would be to quantify the loss. Now tell me ... how can they quantify the loss of a copyrighted concert recording when they're no longer selling it?

In trademark law, there is a provision that requires trademark owners to prove use of a trademark and prove protective activity on a trademark. If they can't do that (as happened in a case involving CBS and the "Amos-N-Andy" trademark), they lose protection. I feel strongly that a "use it or lose it" provision similar to that found in trademark law should apply to copyright law as well. Actually, I prefer to call it a "dog-in-the-manger" provision. If recording companies sit on copyrights or otherwise cause a moratorium on sales to occur, they should suffer the consequences ... and the public domain should reap the benefits of their refusal to do business.

(4) On 1/18/2002, I got a Wired Magazine news alert emailed to me. The Kazaa music service stopped people from downloading their client software. This was in response to a lawsuit by the RIAA. But 3 days later, Kazaa had a different response. The Kazaa music service (based in The Netherlands) sold itself to Sharman Networks, Ltd., an Australian firm, which planned to pick up exactly where Kazaa left off. This sale involves software known as FastTrack, and is used by Kazaa, Grokster and iMesh users. Keep in mind that this software does not require the existence of a centralized server (as did Napster) in order to work. This comes from a Wired Magazine article dated 1/21/2002:

In November, a Dutch judge ruled that the company must stop its users from sharing copyrighted music files, but the company said it could not comply because its decentralized system did not allow it to know who its customers are.