In their final exchange, Hanson and Rosenthal focus on the history of copyright lawsuits. Previously they debated promotion on the internet, webcasting economics, the distinctions between online and broadcast radio and whether webcasting should be open to hobbyists.

A smack in the head is what you should get!


If I were you I would be a little put off by today's topic. It suggests that webcasters have a kinship with the online criminals from Grokster who hide from lawsuits and the authorities in the jungles of Vanuatu and other pristine offshore jurisdictions—right next to the drug kingpins and Internet gambling syndicates. I know it is incredibly fashionable to give a pass to really clever kids who can create new technologies that trample on the rights of artists, but I really don't think that a "free ride" webcasting community emulating the Groksters of the world should be viewed as offering a legitimate answer to plummeting sales—even if they make toys that everyone wants to play with.

It is significant that even Napster founder Shawn Fanning has seen the light. He now promotes a pay service, and he has learned a hard lesson in the process. Just because you can create a new technology, doesn't mean that you check your sense of legal and moral responsibility at the door.

Do webcasters really want to emulate Napster and Grokster? Do they want to turn webcasting into a form of "fair use" that will contribute to further bankruptcy of modern recording artists?" Do they really want to be part of a movement that has turned a generation of kids into a bunch of morally bankrupt punks who think they are entitled to free music? I don't think so, but sometimes I am not sure.

To some this may sound crazy, but I sincerely am starting to hate the Internet. I know you see the Internet as some incredible invention that has opened the door to unlimited distribution of music—and your lofty goal is to bring music to as many as possible. But all I see is a tidal wave of artist abuse. And the thought of webcasters emulating the Groskters of the world, and being given a free pass just reinforces my view that the Internet is not becoming a beacon of light, but a cesspool of darkness. I don't think it is overstating it by concluding that illegal file sharing is the direct cause of the greatest campaign of copyright infringement in history, and has resulted in the music industry's being devastated. There is really no disagreement among legal scholars that illegal file sharing is copyright infringement. And the Supreme Court has ruled that those creating the technology and inducing users into the act of unauthorized file sharing are engaging in secondary copyright infringement.

And now the question is why we don't allow webcasters to do the same thing as Napster and Grokster, but without protest. We should just back off. We should allow them to use the music without payment, perhaps calling it a form of "fair use" or rationalize it as promotion—which will surely result in an explosion of music sales or increased touring revenue or loads of merchandise sales or whatever.

Anyone suggesting that webcasters be given a free pass because sales are still reeling after the experience of Napster and Grokster must believe that artists are lemmings racing for the cliff. Artist's rights have been brutalized. The music industry has been devastated. And both kids and parents of an entire generation believe that music should be free. And that we should just do it again with webcasting.

This is no time to give into anarchy. We must stand for the proposition that the development of any new technology not incorporating the legal and moral obligation to pay artists for their music is an immoral and incomplete technology—deserving of nothing less than an energetic lawsuit, and perhaps a smack in the head.

Jay Rosenthal is a partner with the Washington DC law firm Berliner, Corcoran & Rowe, LLP; co-legal counsel to the Recording Artists' Coalition; and a SoundExchange board member. He also represents numerous recording artists, independent record companies, producers, songwriters and independent film companies and is an adjunct professor of entertainment law at the George Washington University School of Law and at the Washington College of Law of the American University.

Ay yi yi!

Jay, I think you misinterpreted our assigned question today—I don't believe the question was trying to imply that U.S.-based webcasters are analogous to copyright infringers from the jungles of Vanuatu.

Rather, I think it's intending to ask whether it's in the music industry's best interest to respond to every new development with aggressive, hardball, take-no-prisoners lawyering.

And I believe the evidence of the past few years shows plenty of examples where a more thoughtful and restrained approach would have been a lot more helpful and productive.