By Robert Menta- 1/22/01
Hannah Bentley is a musician, a lawyer and a Net expert who combined the latter two to found an organization out of San Francisco called the Internet Lawyers' Group. Today she added her music into the mix when she requested a judge grant class-action status to 60,000 independent musicians whose music has been traded on Napster.
The request, if approved, will add the musicians she represents to a suit already filed last July by independent label Casanova Records.
The suit is another element of an already growing copyright controversy stirred up by the likes of Napster and the Internet in general. Trading on the Net has become so efficient that it has stretched the definition of fair use to a point that copyright holders are scrambling in every direction to secure some form of control in an environment that may be worth billions. The courts have been a frequent venue for laying claim to every aspect of copyright on the Net. The problem is, most of these claims simply go beyond laws that were put in place years ago, before lawmakers or copyright holders had any concept of the delivery potential of cyberspace.
So the Net has become the great Oklahoma land rush where everybody simply declares this slice to be theirs. Big Music claims they own the digital rights to the music they distribute. Artists claim they never gave these rights to the labels and that they own them. Radio stations claim that they don't need to pay extra when they simulcast their station programming over the Net. The Harry Fox Agency claims they do. Napster and MP3.com claim the consumer purchased all rights when they bought the CD and that includes the fair use right to trade tracks and listen from a Internet music storage locker without additional license fees.
How will they settle it? Sue, a process that can be so financially debilitating for a small company that it is a frequent tool by big companies to force a compromise that is destined to significantly favor them. A class-action suit is how the average person lays their claims en masse against big companies with the assets to actually afford to pay restitution to thousands. Now that Napster is owned by the deep pockets of conglomerate Bertelsmann it is fiscally a target worthy of a class-action.
Class-actions suits are very lucrative to a law firm should they successfully prove their case. Hannah Bentley the musician may indeed be concerned with protecting the rights of all musicians like herself and her intents are only the most noble and sincere. Nonetheless, Hannah Bentley the lawyer will earn far more money in a win for her and her firm than any of the musicians she represents, especially if the suit expands beyond the 60,000 artists she represents.
Law firms with less than noble intentions are surely looking at this strategy closely. There are a lot of artists out there who have been screwed by record companies and only the most recent of contracts mention anything about digital rights. That means potential clients.
But the lawyers will have a battle on their hands against the competition's legal staff. Also, there is a difference between control of digital rights and actually earning money from them. Napster doesn't charge for downloads. It doesn't even store them. Napster is basically just a venue for trading. Artists may be found to possess the digital rights to the music they create, but consumers may also be given rights. That right is to freely trade the music they purchase just like they can freely trade any form of chattel they own. Until this case goes to the highest court or until legislation better defines the role of P2P software, who controls what looks to be up in the air for some time now.
Still, if anyone should gain restitution from Net music as a whole it should be the artist. We would much rather see it go to the people who sing and play the music we love than go to a conglomerate who needs to raise big money just to pay the interest on the loans for their most recent mega-merger.
Copyright MP3 Newswire 2001
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