On Monday and Tuesday, while everyone and his dog were going on the record with their largely self-serving interpretations of the Ninth Circuit ruling on a stay of injunction which Napster has been enjoying while awaiting its day in court, one important voice remained curiously silent.
US Senator Orrin Hatch (Republican, Utah), chairman of the powerful Senate Judiciary Committee and a known Napster ally, kept mum, causing speculation that his prior devotion to the cause may have been the mere function of prompting by his former aide and Committee chief counsel, Manus Cooney, who lately left Congress to join the Napster staff.
Without Cooney's pro-Napster influence, the whispering implied, Hatch had lost his resolve.
We held our tongues here at The Register because, as we've observed Senator Hatch over time, we know him to be one of the most sincere and fair-minded members of that cynical power marketplace and ostentatiously-costumed political circus otherwise known as the United States' Congress.
We gave him the benefit of the doubt. We waited. We just knew he'd do the right thing.
And sure enough, on Wednesday he delivered.
Napster is "the most popular application in the history of the Internet," Hatch announced on the Senate floor. And then he urged the recording industry to work on a compromise instead of pursuing the zero-sum game it's been playing.
"I was pleased when Bertelsmann took the initiative in harnessing the consumer demand evidenced by Napster and decided to work cooperatively together to develop a service that would benefit both of them and those they seek to serve: the artists and fans."
This was more than a friendly suggestion. "I would expect that my colleagues, like me, will be contacted by the over 50 million Napster fans who oppose the injunction and fear the demise of Napster," Hatch said.
And then the kicker: "this might prompt a legislative response."
To be sure, Hatch is no friend of copyright infringers, as he made clear in his speech, and on numerous prior occasions. Indeed, it was he who sponsored the dreaded Digital Millennium Copyright Act (DMCA) which the software and entertainment industries have been abusing left and right in efforts to go far beyond copyright protection, into actual content control.
But we've long been operating on the assumption that Hatch never realized the potential for bullying and abuse deviously woven into the DMCA language by software and entertainment industry lobbyists and lawyers. We've seen him express disappointment in industry manipulations under the Act on more than one occasion since it passed.
Hatch, wisely, doesn't see Napster and the recording industry locked in a zero-sum struggle. The Bertelsmann deal is the model he would point to. "I believe that artists must be compensated for their creativity, and I believe that Napster, as it currently operates, threatens this principle," Hatch allowed.
He definitely respects copyrights; he definitely admires Napster. He's looking for balance. But the significant point here is that Hatch would re-visit the legislation if innovative projects like Napster are routinely ground into submission by vastly superior legions of corporate litigators with immense war chests, wielding the DMCA as a weapon.
And we believe him.
We recommend that the entertainment and software industries believe him too. The man does not talk bollocks. ®