By Tracy Reilly
Twenty years have elapsed since the Metallica v. Napster copyright lawsuit forever changed the landscape of digital file sharing and the fate of the music industry—as well as Metallica’s reputation that had become tarnished by fans who felt entitled to “free” music. By debunking collectivist ideologies and defending the long-standing principles of individuality and copyright ownership, this article reveals why Metallica’s fans—and not the band—were the “Sad But True” wrongdoers in the Napster debate.
Keywords: file sharing, music technology, music industry, Napster, Metallica, heavy metal, creativity, copyright authorship, copyright infringement, death-of-the-author, Michel Foucault, deconstructionism, Ayn Rand, collectivism, individualism
In a 2012 YouTube interview, Gene Simmons was asked outright what led to the demise of the music industry that was in its hedonistic heyday in the 1970s when his band KISS, and other heavy-hitting acts from that golden era of music, forever changed the landscape of rock-and-roll. In his cocky rock-star demeanor, he emotionally exclaimed without hesitation, “The record industry is dead because of the fans! They killed it! And what you have now is chaos” (“Gene Simmons”). Simmons was reacting to a set of questions from the interviewer that were tangentially related to the phenomenon of online file sharing that became popular in the late 1990s, when Napster dramatically transformed the manner by which fans in the heavy metal scene—as well as other genres—obtained their favorite music.
From its onset, however, Simmons and other heavy metal heroes, such as drummer Lars Ulrich from the mega-metal band Metallica, were not buying the surreptitious digital platform, which Napster touted as music “sharing.” These musicians and a handful of others saw through the veneer of Napster’s marketing efforts, which were ridiculously embarrassing attempts to obfuscate the illegality underlying its sneaky business practices. No—these musicians recognized early on that file-sharing websites and the software invented to use them serve only to create a digital atmosphere and a cultural attitude that encourages fans not to share, but to steal the music created by their favorite bands. And, now—almost twenty years after Ulrich led Metallica in an all-out legal copyright battle against Napster—stealing music is what the so-called “fans” continue to do, with neither consequence nor conscience, using existing programs, such as Bit Torrent and The Pirate Bay.
In this article, I will challenge the widespread cultural belief that file sharing is neither illegal nor immoral. Writing from the perspective of a life-long metalhead and former entertainment lawyer, I will debunk the progressive, anti-copyright ideologies that have fostered and encouraged the practice of digital theft, resulting in the steady demise of original and creative musicianship. Operating within the context of the competing philosophies of collectivism and individualism, I will show that, sadly, it was Metallica’s fans and not the members of the band who failed not only their metal heroes, but also the music community as a whole, during and after Metallica v. Napster. In short, I will provide both the legal and philosophical reasons that Gene Simmons was correct to say that the fans—with the assistance of file-sharing companies like Napster—have effectively killed the music industry.
The Dawn of File Sharing
It all started in the late ’90s, when Northeastern Massachusetts University student Shawn Fanning, his uncle John Fanning, and friend Sean Parker co-founded Napster, the pioneering peer-to-peer (P2P) file sharing network system that allowed its online subscribers to connect with other members. Fanning claimed in a 2000 Newsweek article that Napster’s original aim was “[t]o build communities around different types of music” (Zaleski). Napster’s subscribers were able to “share” their favorite music by utilizing the company’s proprietary software to upload, download, and store MP3 files—the digital copying platform that became obsolete almost as quickly as it did revolutionary in the ’90s—on their own home computers. By tapping into high-speed Internet systems, fans were able to obtain, with the click of a mouse, any song ever created—and for free. It was thus not surprising when Napster became not even an immediate, but an instantaneous success, boasting over 70 million users—a feat that is still documented in the Guinness Book of World Records as the fastest-growing business ever to have existed (Nieva). That is, until Metallica—mostly led by Ulrich—caught wind of the website and, along with rapper Dr. Dre, who would later file a similar lawsuit against Napster, effectively laid the copyright-gobbling monster to rest.
Metallica Slays the Beast of Napster
Fed up with the P2P practice in general, and particularly upset because one of its unfinished and unreleased demo songs, “I Disappear,” was found being played on the radio due to a leak that was traced back to Napster, Metallica sued the popular company in a US District Court in the Northern District of California in 2000. Alleging a host of federal statutory claims, including copyright infringement and violations of the Racketeer Influenced and Corrupt Organizations (RICO) Act for ongoing criminal activities, the members of Metallica would be the first artists (as opposed to corporate record labels) to take a legal stand against file sharing.Almost twenty years later, whether Metallica would come out the winner or loser in this “Goliath vs. Goliath” battle is still a matter of debate.
After Metallica won a preliminary ruling nearly a year into the lawsuit, which led to a court order compelling Napster to remove all of the band’s songs from its site pending the outcome of the suit, it appeared that the district court was heading in a direction that would predict ultimate success for the band on the legal merits. Further, because Metallica had alleged damages in its complaint for $10 million (essentially a rate of $100,000 per illegally downloaded song), Napster found itself between rock-n-roll and a hard place and, thus, decided to settle with Metallica and Dr. Dre. Among other terms, Napster agreed to block access to all songs by artists who opted out of distributing their music via P2P, essentially reconfiguring its working model in order to conform to the legal rules of copyright law. The backstory behind the settlement was that Napster had fully expected at the time of settlement to seal another deal with the media giant Bertlesmann AG, which would purchase and run the company legitimately and in accordance with the specific terms agreed upon by Metallica and Dr. Dre.That deal eventually fell through, and Napster filed Chapter 7 bankruptcy soon thereafter (Zaleski).
Although this turn of events would seem like a win/win for Metallica, the real hell was just about to begin for the band. To say that followers of Metallica pre-Napster were hard-core fans would be an understatement. As it turned out, however, even the most steadfast fans proved their disloyalty when it comes to preventing their ability to download music for free. Perceiving the band members to have “sold out” to big money and corporate interests, millions of metalheads rallied against Metallica’s decision to sue and effectively shut down the fledgling file-sharing website. Several felt that their past monetary support of the band, including previous album purchases, concert tickets, and merchandising sales, had somehow given them carte blanche to receive Metallica’s new songs and albums for free (Simon), despite the fact that such practices were stealing from artists the royalties to which they were entitled, both legally and ethically. One online music company went so far as to set up a website called PayLars.com that allowed fans to donate money in order to make up for the revenue the band “thought it was losing” to online trading; even fellow metal band Mötley Crüe jumped on the bandwagon by creating an anti-Metallica video mocking the lawsuit called “Metalligreed” (Zaleski).
What the fans failed to perceive is that their behavior both before and after the Napster lawsuit contributed to the collapse of an industry that had faithfully (if not entirely perfectly) produced and distributed state-of-the-art recordings of new music created by their favorite bands. As Napster and other copycat pirating sites (pun intended) rapidly and thoughtlessly led the world into a digital + Internet = free-music economy, the record industry experienced an incremental decline in record sales. Every year since 2000 until 2014, its value dropped, hitting a low of $15 billion at its lowest, before it finally moved into recovery mode in 2015 (Ford).
Inasmuch as culture has of late taught us that this fact should be a cause for celebration because “money is evil” and “corporations are bad,” such misinformed and benighted mantras often fail to take into consideration the fact that record labels routinely take on significant economic risk when signing artists, and profit only on the commercial success of a handful of new acts (Day 74-75). As Day further notes,
Specifically, record labels provide a typical new artist with over $1,000,000 in capital to promote a new album, while providing more established artists with nearly $5,000,000 in total funding. New artists generally receive a $200,000 advance for personal expenses, which allows the artists to concentrate on their creative work, and an additional $200,000 for recording costs. On average, the label pays another $300,000 for artist promotion and marketing, $200,000 for music videos, and $100,000 to fund the artist’s first promotional tour. (75)
The resources used to fund these endeavors, without which there would be no high-production world tours, merchandising, music videos, or a host of other fan benefits, comes almost exclusively from fan purchases.Shutting down the record companies thus means eviscerating the bread and butter upon which our rock and metal heroes exist.
Why the Fans Were Wrong and Metallica Was Right
Understanding why the fans’ actions and beliefs were then (and remain to be) fundamentally misguided requires an exploration into both the purpose of copyright law and the phenomenon of what it means to be metalhead, or steadfast follower of loud, powerful, in-your-face bands like Metallica. Within the vast historical framework of copyright law, the practice of Internet file sharing is a relatively recent technological phenomenon. While the available technology used to copy music continues to morph and develop through the years, the practice of trading music has been key to the metal scene since its roots in the 1960s. One undeniable characteristic of a true metalhead is keeping up with the discography of all of the popular contemporary and iconic bands. Throughout the early decades of rock and heavy metal, this was a rather daunting, if not expensive, task—especially when the mega bands in the heyday of the record industry would attempt to put out an album a year. Led Zeppelin is one band that accomplished that task (at least early on) under the brilliant leadership of Peter Grant as manager and Jimmy Page as visionary, writer, artist, and producer.
In order to ensure that we stayed in step with such musical progress prior to the so-called “digital revolution,” those of us growing up in the early metal scene turned to making cassette-taped copies of the albums that we bought at our favorite record stores. We would then literally hand out the dubbed versions to our friends who may not have had a chance to purchase the record—yet. In the pre-digital era, as the bands and their record executives knew well, the loyalty of the fan base was such that whenever we had some extra money, we eventually did buy our own copies of all the albums released by our favorite bands. Often—if not, always, in the case of our favorite bands—we would be enticed into purchasing an album by listening to the dubbed cassette. Until we could buy it, however, we settled for an imperfect analog copy, which was a mere placeholder for the vinyl record package in all of its glorious machinations—from liner notes and lyrics to cover art, band photos, and acknowledgements.
We bought blank cassettes at our local Walgreens or Woolworth stores by the dozens—waiting for a sale, but always having a few on hand for that occasion when someone would bring over an album you had not yet purchased or heard in its entirety. Or, even better, a bootleg. “Mixed tapes” were those including a variety of songs by different bands that we made in order to play in the tape players in our cars, in the boom boxes at parties or on the beach, and in the cassette decks of our stereo systems stacked high in the corners of our bedrooms. It was, essentially, commercial-free radio—like the precursor to Pandora (that is, if you opt to pay for the premium version)—but with a lot more blood, sweat, and tears on the front end. The mixed tape was a work of art, and a labor of love—a treasure, really.
So, how can a copyright law professor square these “sharing” practices of the good old days with what she obviously perceives to be theft of copyrighted material when today’s fans practice P2P file exchanging on the Internet, using existing programs such as Bit Torrent and The Pirate Bay? Well, for the most part, back in the golden days of the record industry, neither the bands nor their record companies paid much attention to our underground practice of analog tape sharing. Moreover, some bands like the Grateful Dead—and, ironically, Metallica—to this day openly encourage their fans to create and share bootleg tapes of their live performances. The difference between then and now is that, unlike second-generation, cassette-taped copies that rendered imperfect analog versions of a studio song, MP3 downloads (or any contemporary version thereof) deliver an exact digital dub.The digital copy thus serves as a perfect market substitute for bands’ new records, depriving them of millions of sales that would otherwise serve to remunerate not only the artists and corporate record labels, but also countless other professionals who contribute to the music-making process, such as producers, sound engineers, studio musicians, photographers, graphic artists, and so forth.
Given the ability for bands and fans to create, copy, and coexist in the marketplace in the pre-digital world, most musicians did not seem terribly troubled by Napster’s business model at the outset. According to Gene Simmons, however, he “went on record initially” when all the file-sharing sites came onto the scene, proclaiming, “This is robbery. This will kill the music industry. You will all be sorry” (“Gene Simmons”). Because file sharing was not stopped at its onset by the corporate entities that owned the copyrights in the music, the practice span out of control. As such, the music industry is now faced with the phenomenon that fans—young and old—have been steadily enculturated to feel entitled to receive new songs created by their favorite bands for free. For a die-hard metalhead of the old days, it is a tough pill to swallow to think that fans would stab their rock and metal heroes in the backs by complaining about paying some money to enjoy the music that they love—the music that is supposedly a core aspect of their very essence and being. After all, one of the greatest things about being a metalhead, aside from the music, of course, is the affiliation and goodwill that we feel towards one another, and most especially, for our beloved bands.
What Does Heavy Metal Have to do With File Sharing?
The underlying psychology behind the creation of the cassette tape (as opposed to that of the mentality behind file sharing) serves as the best evidence that the metal scene is one of group affinity and shared experience, as demonstrated by the authors who contributed to the book Heavy Metal Music and the Communal Experience. As evidenced by this and other academic treatises in the relatively new area of metal music studies, scholars who write in this realm claim frequently that one of the main defining characteristics of metal fans around the globe is a notion of communal affinity that “can provide individuals with a sense of meaning and purpose that allows them to come together as a community” (Varas-Díaz and Scott vii). In discussing what she terms the “culture of the community,” Deena Weinstein maintains that the first characteristic of a metal community is a shared set of values that “define what is morally right and wrong, what is beautiful and ugly, and what is true and false,” all of which dictate the codes of conduct within the particular community (10). Because metalheads are also notoriously characterized as having isolative and excessively individualistic behavior traits, these and other metal authors universally recognize the difficulty of precisely defining the complex metal community, since it is “fraught with perceived paradoxical relationships, the most noteworthy being that of individualism juxtaposed with a strong sense of belonging and identification with metal’s communal expressions” (Scott 26). Moreover, several metal academics call for further research that aids in squaring how “individuality and community [can] be simultaneously celebrated” within the vast and complex global metal community” (Varas-Díaz and Scott vii).
After reading Eric Smialek’s article, “The Unforgiven: A Reception Study of Metallica Fans and ‘Sell-Out’ Accusations,” the inherent contradictions between collectivism and individualism in the metal scene becomes even more manifest. Smialek maintains that the visceral backlash Metallica experienced in the wake of its copyright infringement lawsuit against Napster was caused, in part, by a “gradual reduction of the band’s social and symbolic capital within the metal scene” (114). Most specifically, fans perceived the band as having “sold out” to the interests of mainstream music after the massive commercial success of its Metallica, or “Black Album” not long after the lawsuit began, and Smialek believes this phenomenon was the main contributing reason for the exacerbation of outrage felt by Metallica fans with respect to the Napster issue (112). The band’s monetary success and ability to cross over and attract non-traditional metal fans, in other words, did not jibe with the image it had initially touted in the 1980s as being “complex, in control, and independent”—in vast opposition to the hedonistic, sex-charged glam-metal bands of that same golden era of heavy metal music (Smialek 107). Because individualism, according to Smialek, “represents a common value for metal fans,” the manner in which Metallica convinced its fan base early on that the band represented and fully embraced such philosophies “played a central role in their subcultural consecration” (107).
While I generally agree with Smialek’s depiction of the fans’ abject betrayal of Metallica post-Napster, unlike him I cannot forgive it, condone it, or explain it as an understandable reaction to “overtly elitist” musicians such as Ulrich, who had become corrupt by evil corporate influences operating in the twentieth-century entertainment marketplace (112). Moreover, I maintain that Smialek’s admonishment of Ulrich for “protecting his own interests as an auteur in control of his own work” and behaving like an “artist-as genius” who is desperately holding onto “deeply imbedded” Romantic “ideals of authorship and control of one’s art” (112) is unfortunate and misguided. Such artist mockery is born of modern academic groupthink, a frightening ideological movement in our universities that has contributed to a widespread societal disrespect of copyright authors, among other evils. When viewed from the lens of this collective mentality, it is not difficult to understand why Metallica’s fans took such bitter and ongoing offense by the band’s decision to expose Napster’s collectivist business model to the light of day.
The Purpose of Authorship in Copyright Law
Smialek’s brief comments on the concept of authorship in copyright law take up less than a single page of his article; however, the meaning these words convey speaks volumes. His castigation of Ulrich as an elitist musician is perfectly representative of the manner in which contemporary academics routinely decry the traditional principles of autonomy and individuality that are deeply embedded within the constitutional origins of our country, which was founded as a constitutional republic. Indeed, Article I, Section 8 of the US Constitution—commonly referred to as the Progress Clause—contains a short but important blurb that empowers and instructs Congress to enact copyright laws that benefit both authors and their audiences, explicitly recognizing that “individual expression is valuable in itself, deserving protection” (Shapiro 1045). Pursuant to the Progress Clause, Congress may pass federal laws that afford authors exclusive rights to their works for limited times, such as the right to reproduce, adapt, distribute, display, and perform them. In step with this foundational axiom, Section 102 of the Copyright Act of 1976, set forth in Title 17 of the U.S. Code, provides federal statutory protection for “original works of authorship,” as well as ownership of a copyright, which “vests initially in the author or authors of the work.”
Translating these legal precepts into everyday parlance, the author is essentially the one who actually brings a work into being, rendering an amorphous idea into a fixed, tangible expression that is entitled to copyright protection just by virtue of its having been born.Our founding fathers recognized with a prescience unmatched by any previous system of government that the long-term economic prosperity and advancement of our country’s cultural assets was dependent on promoting “the progress of science and useful arts,” which necessitates securing these and other exclusive rights to authors who create original music and other works.As such, the author has historically been treated as the hero in the US copyright story, contributing to our massive output of educational and entertainment products—and being remunerated and incentivized to continue in this noble quest (Reilly, “Tragedy” 194).Because authors contribute to our vast collective of creative works, they should receive reward in turn for the blood, sweat, and tears attendant to the creative process, just as any other person engaged in a job or career rightly expects.Perhaps more importantly, the rest of the public that enjoys the works of authors should be happy to recognize and reward authors to continue in their noble creative endeavors by affording them control and exclusive profitability from their original works.
The impassioned sentiments expressed by Ulrich and other Metallica members with respect to their desire to own and control the musical works they create are, in fact, deep-seated in notions of personality, identity, and property ownership that far predate even the earliest copyright laws on the books in the United States and in other industrial countries.
Indeed, as I have argued in a previous article, the “romantic” notion of copyright authorship that is under fire today embraces an age-old philosophy that creative works are not only expressions of artists’ talents, but also an extension of their personality. Furthering this assumption, just as property law protects the personal belongings of individuals, copyright law aims to protect the private interests of authors, allowing them to exercise exclusive control of their intellectual products in order that they can ensure the integrity of their self-expression (Reilly, “Synergistic Society” 585).Nonetheless, despite the fact that copyright has served to protect these important individual instincts, legal scholars and other academics writing about music continue to lambast musicians for raising them in the context of a copyright infringement lawsuit.Instead, they are attempting, on a global, universal scale, to eviscerate the principles of originality, autonomy, and individualism grounded in the Age of Reason that contributed directly to the conception of modern copyright protection (Sechin 102).
By contrast, when professors teach copyright law rationally and within its proper historical context, it is not difficult to determine why the members of Metallica were so adamant about vigilantly protecting their songs from unauthorized digital downloading, nor is it likely to cause societal outrage.The research topic, therefore, that is missing from the literature published by metal music scholars is an attempt to understand why Metallica’s fans, who purportedly belong to this metal sub-society of shared interests and values, betrayed the band after Napster.Only then can the research turn to exploring the likely cultural and philosophical consequences portending the dire future of metal music when its very own fans turn their backs on their artist-heroes in such a fundamentally devastating manner.
The Rise of Grunge and the Death of the Copyright Author
The first place to analyze this sad state of affairs is to inquire how society came to decry the capitalistic markets and corporate structures in the entertainment industry in the post-Reagan era, ironically coinciding with the depressed, unkempt, and embarrassingly imitative hands of the grunge-rock scene, which almost wiped out the heavy metal trajectory altogether. While traditional heavy metal was founded on the same notions of autonomy and individuality that characterize our copyright law principles, the emergence of grunge rock in the 1990s witnessed the rise of Pearl Jam, Nirvana, and other bands insistent on the apology for and demise of capitalism, yet ironically, like Metallica, commercially successful in their anti-establishment messaging. Unpolished (and un-showered), grunge musicians like Kurt Cobain, who gained God-like prominence in the music industry, were unable to square their unwelcome economic global success with their political and life philosophies, resulting in tragic demise for the overall movement, which fizzled out steadily even before the decade ended.Taking the lives of at least nine prominent musicians, “the grunge death toll is arguably unlike that experienced by any other music genre” (Le Miere).
At this point, it is interesting to compare Metallica to two other highly successful pre-grunge bands that arose from the 1970s haven of heavy metal greats—KISS and Led Zeppelin. Like Metallica, both of these bands achieved sales of their albums, concerts, and merchandise to such a ludicrous extent that they were flying around in their own jet planes (in the case of Led Zeppelin) and amassing tens of thousands of dollars in side businesses, such as dolls, comic books, restaurants, and corny made-for- TVmovies (in the case of KISS).Yet no KISS or Led Zeppelin fan ever turned their backs on their rock heroes in the same manner as Metallica fans did in the 1990s because they were perceived as sell-outs or corporate giants.
In fact, Susan Fast’s study of Led Zeppelin in 2001 reveals that several fans of the band who participated in interviews stated that the main reason they love them is because “they [are] not commercially driven” (181). This is true despite the fact that both bands were moving into producing non-traditional fan-based music that reached well beyond the confines of the then-defined cloistered metal scene. Led Zeppelin’s 1979 release of In Through the Out Door heralded the undeniable influence of the unfortunate upcoming new era of ’80s pop music, as Jimmy Page’s indelible and riveting guitar riffs that had been front-and-center in all previous Zep albums took a major back seat to John Paul Jones’ very groovy (yet highly un-metal) keyboards in such songs as “In the Evening” and “Carouselambra.”In a similar vein, old-school KISS fans had to endure the awkward unmasking and major commercialization of the “Lick it Up” single on MTV in 1983—an embarrassing video that is still very difficult for this fan to watch, to this day!
Nonetheless, while metalheads may have shaken their heads in disappointment with respect to these changes, neither KISS nor Led Zeppelin received the type of traitorous backlash, album burnings, or vast decreases in record and other sales as that experienced by Metallica in the decades to come. This is, in part, because neither band ever apologized for their success, nor did they tout themselves to be the altruistic and sappy songsters, hipsters, and grunge-sters that Metallica were shaping themselves up to be. Had the members of Metallica stood on their high capitalistic ground (and in their high boots) as Gene Simmons and Robert Plant did in the late 1970s, touting the “demon child” and “golden God” hero-figures that they had come to symbolize, I submit that they would still be receiving the kind of respect and hero-worship that KISS and Led Zeppelin do to this very day, despite of—and perhaps, because of—the massive success and market fortunes they amassed. Instead, because Metallica set upon this ridiculous campaign to convince fans of their self-righteous, anti-corporate, and un-materialistic posture—which eventually became increasingly unrealistic given their wide success—they backed themselves into a corner from which they could not escape. As Marshall rightly summarizes:
The problem facing Metallica was that they could not stress the financial implications of the [Napster] suit because, if they gave the message that they had even thought about commercial matters, they would undermine their artistic credibility. Ironically, this would also seriously affect their sales, as their commercial success to a great extent depends upon their artistic credibility. (8)
What an impossible and, unfortunate, place for such a successful enterprise as Metallica to find themselves in!
Collectivist Ideologies are Killing Copyright (and our Metal Heroes)
In short, it my opinion that Metallica fans and other metal fans unfairly and, likely, unconsciously turned against the band in the wake of its lawsuit against Napster.Why did they do this?Breaking down all the analysis on the subject, I submit that Metallica’s fans failed them for one essential reason.Fundamentally and unbelievably, they felt betrayed because their favorite band enjoyed commercial success.The resentment that ensued from this unfortunate sentiment led the once fiercely loyal fans to feel entitled to pilfer the band’s digital recordings, and then lash out when Metallica did the only rational thing to protect their investment—file a copyright infringement lawsuit.
How did these feelings of resentment, entitlement, and lack of respect for artists who create great musical and other creative works occur? I attribute it, in part, to the widespread proliferation of the bizarre notion that the “author is dead,” as promulgated by those in the academy, beginning with the French historian/post-structuralist Michel Foucault in the late ’60s. In his infamous article in the field of literary criticism, “What is an Author?” Foucault asserts that:
We must entirely reverse the traditional idea of the author. We are accustomed, as we have seen earlier, to saying that the author is the genial creator of a work in which he deposits, with infinite wealth and generosity, an inexhaustible world of significations. We are used to thinking that the author is so different from all other men, and so transcendent with regard to all languages that, as soon as he speaks, meaning begins to proliferate, to proliferate indefinitely.The truth is quite the contrary: the author . . . does not precede the works; he is a certain functional principle … by which one impedes the free circulation, the free manipulation, the free composition, decomposition, and recomposition [sic] of fiction.
Every university student—regardless of major—is exposed to the Foucauldian death-of-the-author philosophy as if it is a given.In the remainder of this article, however, I will explain how the deadauthor claptrap is directly contrary to copyright tenets, as well as the basic principles of a free and thriving society.
Note first that these precepts heralded by Foucault directly conflict with the very intent and spirit of the Copyright Act: works of creativity and originality are opposite to functional works, which are governed by the Patent Act, pursuant to a completely different structure and set of rules that protect useful inventions. Moreover, the “free manipulation” of fictional (and other original works) is clearly contrary to the exclusivity provisions in the Copyright Act—that authors should have ultimate control over creative work they produce. Regardless, Foucault goes even further, calling “for a form of culture in which fiction would not be limited by the figure of the author” and stating that, when we effectively kill the author, all writings/discourses would “develop in the anonymity of a murmur. It will not make a difference who is speaking. Others are free to appropriate the discourse for themselves.”
The result of the Foucauldian assault on authors is that our time-honored notions of individual authorship have been abnegated to this amorphous, collective notion of common, group ownership. The assault has steadily found its way to the legal academy, as evidenced by the fact that the bulk of copyright law scholarship today demonstrates
a ‘general trend against supporting individual rights’ in favor of more collectivist approaches, which are ‘predicated on a rejection of the idea that people are really autonomous.’ According to [one copyright professor], ‘[o]ur attachment to individual property rights is interpreted as symptomatic of the individualism at the core of Western society that needs reappraisal and deconstruction.’ (Reilly, “Synergistic Society” 586-87)
Conveniently, if we deconstruct and reappraise principles of individual ownership in favor of some undefined, autonomous collective that owns all products of entertainment, others within the collective who did not create them in the fundamental sense of the word cannot steal them, but only share them with one another. Napster’s platform was, indeed, based upon this progressive ideology.
I maintain, however, that this “collectivist copyright” attitude will ultimately lead to a nihilistic, abject society. Our founding fathers understood that if artists cannot control and receive royalties for their creative works, they would eventually stop creating. Unfortunately, many up-and-coming metalhead professors, and virtually everyone in the academy teaching and writing on copyright law, have been heavily influenced by the French deconstructionist indoctrination from their high school and college professors.Such teachings contribute to the widespread mantra that “corporations are evil” and “money is evil,” and that musicians and other creative folks like our friends in Metallica must somehow be forced to apologize for their vast success in the marketplace of ideas.Thus, it should be no surprise that the Metallica/Napster debacle in the late 1990s led to a vast chasm of animosity between the once highly successful band and its myriad of fans that, to this day, has still not been successfully bridged.While Metallica’s victory over Napster could have salvaged the musical innovativeness witnessed in the golden age of pre-grunge heavy metal, the widespread fan reaction to the lawsuit and reprisal against Metallica and others who decry the practice of file sharing served as the catalyst that steadily continues to erode that creativity.
Objectivist philosopher Ayn Rand maintains that “[a] culture, like an individual, has a sense of life—an emotional atmosphere created by its dominant philosophy, by its view of man and of existence. This emotional atmosphere represents a culture’s dominant values and serves as the leitmotif of a given age, setting its trends and its style” (Primitive 130). Without a doubt, the anti-textual (and anti-intellectual) philosophies of Foucault and other poststructuralist theorists, such as Roland Barthes and Jacques Derrida, have contributed to a widespread cultural belief that music and other entertainment products should be available without charge. This anti-author banter has continued to culminate in the type of discourse that Smialek, and many other academics, emulate when talking about the notion of copyright authorship. This is also the mentality that led to the pervasive belief among a majority of Metallica’s fans that enabled them to adopt a cavalier and unappreciative attitude that they were somehow entitled to free music, directly in contravention to hundreds of years of copyright jurisprudence and, frankly, good common sense.
Conclusion: Copyright Can Save the Music
Fortunately, thanks to a small handful of professors who are not afraid to fight for the principles of autonomy embraced in our constitutional doctrines, copyright is slowly but steadily regaining its individualistic feet. I hope that when enough people become educated about the realities of Internet theft, deconstructionist ideologies will no longer pervade policy decisions with respect to intellectual property and that my favorite metal bands like Metallica are once again able to celebrate their vastly creative, autonomous, and monetarily successful musical achievements. I anticipate a rejuvenation of creativity, and I desire to witness once again a few maverick, un-apologetic, in-your-face bands such as Led Zeppelin and KISS, which represent the iconoclastic musicians that all metalheads of the 70s and 80s looked up to and revered.
I also aspire to experience a reinvigorated and appreciative spirit among the fans of those bands.Indicative of a spark that may ignite such spirit is the fact that, thanks to paid streaming services such as Pandora and Spotify, the record industry has posted a steady increase in revenue since 2017 (Routley), indicating that consumers may finally be warming up to once again paying for music to keep their favorite bands in business.Also indicative of a new future trend for an enlivened spirit of authorial respect is a recent apology that a Metallica fan publicized, asking forgiveness from Lars Ulrich after having reflected for fifteen years on what the Napster lawsuit was really all about:
All these years later, I’d like to publicly apologize to Metallica, because I was definitely part of the problem. Like any fan, I was seriously looking forward to the release of “I Disappear,” and when [it was] reported that the song was floating around Napster, I immediately ran to the family computer to install the software. My experience with downloading music up to that point was limited to WAV files I would suck down and then assign to various actions in AOL (any time I received an Instant Message, I got audio of Neil Armstrong saying, “The eagle has landed”), but I was immediately hooked on Napster. Suddenly, most all of music history was before me, and all those Ramones albums from the ‘80s that were more or less out of print at the time were suddenly available to me for free. All it took was a double-click and the patience of a monk—on my dial-up connection, it generally took 40 minutes to download a single three-minute song. “I Disappear” clocks in at 4:26, so it was an hour before I could finally press play on it. It ended up not quite being a return to form (for Metallica, that journey would come later), but it did rock pretty hard, and I was happy to have new material from one of my favorite bands. I also thought Napster was awesome, though so many of my favorite artists were rallying against it, I was filled with guilt any time I used it. But I was particularly angry at Ulrich, who went to Napster’s offices a few weeks after filing the lawsuit with the intention of delivering the names of roughly 300,000 users who had downloaded Metallica songs and demanding their accounts be terminated. I assumed I was among those rolls, as I had been enjoying “I Disappear” (as well several live bootlegs of “Hit The Lights”). He seemed stubborn and greedy, a spoiled, aging rocker unwilling to embrace new technology in favor of yelling at clouds instead. Of course, years later, I wish we had all listened to Lars. Once people started believing music piracy was a reasonable thing to do, that toothpaste remained out of that tube forever. Napster gave me a gateway to stuff I did not have access to, but it also criminally de-valued music, a development from which the industry has never recovered (and probably never will, in all honesty). Lars was the canary in the coal mine, and everybody is worse off because we didn’t listen to him about the dangers of Napster and its ilk. (Anderson)
It is my wish that this heartfelt sentiment is a testament that more young (and old) music fans are slowly coming to appreciate the fact that a society that does not respect, support, and compensate the author-heroes of the entertainment products it enjoys is a society that is, decidedly, one without spirit. Copyright, although one of the most misunderstood laws, is both historically and morally right and, at the end of the day, as Rand so prophetically said, “Since man has to sustain his life by his own effort, the man who has no right to the product of his effort has no means to sustain his life. The man who produces while others dispose of his product, is a slave” (Selfishness 110).
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