Foes Sound Off in Debate Over Music Web Sites

Rock stars and representatives of the recording industry, high-tech entrepreneurs and programmers came together Tuesday at a hearing of the Senate Judiciary Committee to stake out their positions in the ongoing battle over digital distribution of music.

By the end of the long session, nearly all the witnesses agreed that though they remain very far apart on major points of dispute, they need to work out their grievances in the private sector.

“I was surprised that on the question of whether we should be moving forward on legislation, there was pretty much a consensus, [and it was] against,” said Sen. Charles E. Schumer (D-N.Y.), a member of the Judiciary Committee who attended the hearing.

In what was undoubtedly a first in Senate history, the hearing featured live demonstrations of the Napster and MP3.com technologies for downloading music on the Web.

“We’re going to go vote while you listen to Creed,” Committee Chairman Orrin G. Hatch (R-Utah) said as he and the other senators left for a quick trip to the Senate floor.

When they returned, witness Gene Kan suggested that, according to recent court verdicts, Hatch might have violated copyright law by broadcasting a song via Napster, a popular Web site that allows users to exchange and play music stored on a network of hard drives.

Kan developed Gnutella--another software that allows users to exchange songs for free but is distinguished from Napster in that it requires no central server--so his charge had an ironic, personal edge.

Hatch quickly responded that the download of Creed’s alternative hit “Higher” was for “educational and governmental purposes” and therefore not illegal. But the exchange highlighted one of the key questions raised at the hearing--namely, does Napster provide a forum for users to pirate copyrighted songs or does it facilitate legitimate tune-swapping by music consumers?

Before a standing-room-only audience--many of them college-age Capitol Hill interns--Lars Ulrich of the heavy-metal band Metallica told members of the committee that Napster “hijacked” his band’s work, depriving Metallica of royalties.

“The primary source of income for most songwriters is from the sale of records,” Ulrich said. “If music is [available] free for downloading, the music industry is not viable.”

Sony Music Entertainment Inc. executive Fred Ehrlich joined Ulrich in expressing concerns about the violation of copyrights by users of Napster and other sites that do not charge fees for downloading songs.

On the opposite side of the debate, folk-rock musician and songwriter Roger McGuinn of the Byrds said that exposure on the Napster Web site had increased attendance at his concerts and boosted sales of his music through MP3.com, a Web site that allows consumers to convert their compact discs to a digital format and maintain them in online accounts, ready for play at any time.

MP3.com Chief Executive Michael Robertson also offered testimony, as did Napster Chief Executive Hank Barry, Gene Hoffman of the pay-per-song play site Emusic.com, Kan of Gnutella, and Chief Executive Jim Griffin of Cherry Lane Digital and OneHouse.

Both MP3.com and Napster have been sued by the record industry. On April 28, Judge Jed Rakoff ruled against MP3.com, finding the company liable for copyright infringement in a New York federal court. Litigation against Napster is scheduled to continue later this month in the U.S. District Court for the Northern District of California. But at Tuesday’s hearing, all parties agreed that the technology behind sites such as Napster is so fluid that any purely legal solution will be short-lived.

“I think this whole issue is something that needs to be worked out in the private sector, mainly because law in this area has a very limited ability to do anything,” said Peter Toren, an intellectual-property attorney with the New York firm Brown & Wood. “If Napster or a similar Web site is shut down, there are many other Web sites out there that can perform a similar service, and they could very easily be beyond the reach of the United States,” he added.

Judiciary Committee spokeswoman Jeanne Lopatto said Hatch and his Democratic counterpart Sen. Patrick J. Leahy (D-Vt.)--co-sponsors of the Digital Millennium Copyright of 1998, the last major piece of copyright legislation--convened the hearing as an “information-gathering session.”