This article was written when Napster was still the largest file-sharing system around, so parts may seem dated.

For now, the battle over Napster rages on, and for the most part, the controversy is about money and rights over distribution. The heated debate has spilled into the public sphere, appearing on just about every television news program, newspaper, and magazine in the country, all the while leaving a volatile trail of ecstatic music lovers and irate record company executives. Thousands upon thousands of sound files are being downloaded off Napster each day, and the Recording Industry Association of America (RIAA) angrily claims that it is being robbed of millions of dollars thanks to the ‘anarchical’ technology. While I must confess that although Napster did blow open the flood gates for a possibly illegal system of online music distribution (some might quibble with that terminology), something spectacular was reinforced by it, something that few casual users have really considered: our right to free speech.

Songs on Napster are like airborne viruses. They can never be contained. The more someone tries to stop them, the more they will realize that it’s truly impossible. Even if Napster is eventually shut down, there are still Gnutella, Scour Exchange, or any one of dozens of other file-sharing programs. Material will continue to circulate around the whole world and there is not a damn thing anyone can do about it—short of shutting down the internet. Take these three tracks, widely available on Napster. They are notable because, unlike most other music, you might not ever hear these songs without Napster. In fact, you might not ever have the chance to. And that would be tragic because, besides being great works of art, these tracks represent the concept of free speech in its purest form.

Eminem vs. Bobby Knight “Role Model”
Length: 1:29

I seriously doubt that anything you’ve heard about former Indiana University basketball coach Bobby Knight could equal the punch of hearing him bellow with insane rage to an Eminem beat. This homage to Knight’s much-celebrated temper borrows its tune from the Slim Shady LP’s “Role Model.” While the original featured Eminem rapping with obvious irony about Slim Shady’s wild and frankly reckless lifestyle (“I’ve been with 10 women who got HIV / Don’t you want to grow up to be just like me?”), this version features portions of a widely circulated tape of Knight exploding on his players: “THIS IS ABSOLUTE FUCKING BULLSHIT! I HAD TO SIT AROUND FOR A FUCKING YEAR WITH AN 8 AND 10 RECORD IN THIS FUCKING LEAGUE AND YOU WILL NOT PUT ME IN THAT FUCKING POSITION AGAIN! ” Underneath the humor of juxtaposing two characters as different as Bob Knight and Eminem though, the track points at the perverse irony of someone like Knight being venerated as a hero despite his long, well-known history of violence and abuse. Meanwhile, Eminem is criticized ruthlessly for his violent lyrics despite his not being in the position of an educator at a well-known public university.

Regardless of the track’s implications, whoever spent time making this statement probably wouldn’t stand a chance in defending him/herself against a corporation like Interscope Records if the track was released in a more traditional format. The fact that a fear of lawsuit must always loom ominously over an artist’s mind, even when he creates a work of social commentary like this, somehow seems to cut short the full implications of the first amendment. After all, wouldn’t you be scared to exercise your freedom of speech if you knew that you could be hit by a lawsuit from a company that could financially bury you?

Negativland “I Still Haven’t Found What I’m Looking For ”
Length: 5:48

Note: there are two versions of this song. This version is the deliberately misleading “Radio Edit” (which was a trick to get unsuspecting DJs to play a song with many expletives on the air). If you can’t find the song, try searching the titles “U2,” “Casey Kasem,” or “Casey Casem.” The other version is the “Acapella” version (7:17), which is also funny but a different song altogether.

Bay-Area Band Negativland has been making experimental music/noise since 1980. They even have ties to UC-Berkeley— Member Don Joyce who doubles as a “champion kickboxer” according to the band’s website used to DJ down at 90.7 KALX, the university-owned station in Barrows Hall.

In 1991, they released a single called U2 deliberately designed to look like a U2 album, complete with the same “U2” logo that appears on almost all U2 albums. Of course, it said “Negativland” on the cover, but the “U2” was much bigger (the group targeted U2 because they felt they were a soulless band who basically exploited their political bravado to further inflate their already over-inflated egos). Negativland decided to take what they felt was an insincere statement, repackage it, and market it as their own sincere statement. So they took the tune from “I Still Haven’t Found What I’m Looking For,” modified the Bono’s melody line to whining synthesizers and threw in some tape loops of insults recorded off CB radio (ex. “You couldn’t find your fucking asshole if your fucking butt wasn’t connected to it!”). Then they topped it off with some clips of radio announcer Casey Kasem cursing like a sailor (they acquired the tape from a friend who came into possession of some outtakes from a Kasem recording session). You’d never think you’d hear so many angry profanities from the calm, gentle voice who did Casey’s Top 40 and Shaggy on Scooby-Doo: “I want a goddamn CONCERTED effort to come out of a record that isn’t a FUCKING UPTEMPO record every time I do a goddamn DEATH dedication! I want SOMEBODY to use his FUCKING BRAIN...”

Needless to say, Negativland and their record label SST (whose motto was “Corporate Rock Still Sucks”) got their asses sued faster than you can say “First Amendment rights.” What followed was a long, drawn out series of battles with U2, U2’s legal entourage, Island records, and Casey Kasem. U2’s management claimed that the album art misled consumers and the music was used without permission. Kasem argued that the sound engineer that leaked the tape to Negativland did so illegally because it was done without his knowledge or approval.

Members of Negativland interviewed the Edge, U2’s guitarist, in July 1992 for Mondo 2000 magazine (though the Edge was conveniently not informed until halfway through that the interviewers were from Negativland), and asked why he didn’t approve of sampling. He said that “in theory” he had no problem with sampling, and in fact didn’t object to Negativland’s sampling. Then why didn’t he drop the suit? Well, it wasn’t U2 filing the suit, he said, it was their record company. He then claimed that U2, who had sold millions of copies of multiple albums (The Joshua Tree alone sold over 5 million copies in the United States) didn’t have enough pull down at Island to make them dismiss it.

To say that it was ridiculous that Negativland was somehow posing a threat to Island or U2 is an understatement. Nevertheless Negativland ended up having to concede to Island records and Casey Kasem largely because they didn’t have the money to defend themselves (unlike U2, Negativland was averaging less than 15,000 copies per album). After both U2 and Kasem had adequately suppressed (crushed) the band and destroyed all remaining copies of the CD, Negativland began to fight back publicly with newspaper essays, opinion articles, and letters, while their dedicated fanbase wrote angry letters to Kasem and U2’s management.

During U2’s Zoo TV tour, critics started pointing out the hypocrisy of U2 suing over sampling, given that for the tour, U2’s stages were equipped with huge televisions that broadcasted, without authorization, copyrighted visual material via satellite at every stop. After a significant amount of bad PR for U2 in the musical community and three years of incessant letter-writing, U2’s management finally cracked and agreed to license the song. Or, as Negativland points out, maybe they just realized that Kasem was still preventing the release on his end, and thus decided to make Kasem alone look like the bad guy.
Negativland wrote many letters to Kasem pleading for him to let them distribute the songs, but Kasem was steadfast. He objected that their music and name were too, well, negative for him to conscionably allow for release. He topped the insult off by sending the band a copy of the corporate-stocking-stuffer The Power of Positive Thinking by Norman Vincent Peale (the band responded by sending Kasem a copy of Fredric Dannen’s Hit Men, a book about corruption and exploitation in the music industry).

But as you can guess, Kasem never signed the papers, so you can’t buy Negativland’s U2 album. But you can get it on Napster. And to be honest, it completely dwarfs the original U2 version in terms of creativity and vision.
Footnote: Negativland compiled a fantastic book titled Fair Use: the Story of the Letter U and the Numeral 2, which documents this case, their arguments, long legal ordeals, and assorted dealings with the corporate machine. Although the book appears to be out of print, it can be acquired through the band’s website at www.negativland.com). Interestingly, the book contains an interview with the band dating from 1992 in which they claim that in the near future, CD quality sound recordings would be circulating around the internet and there was no way anyone could monitor them.

Evolution Control Committee “Rocked By Rape”
Length: 4:29

In 1998, the Ohio electronic trio Evolution Control Committee released a hilarious but disturbing single comprised of remarks made by Dan Rather on the CBS Evening News backed by samples from AC/DC’s “Back in Black.” The “lyrics” were made from a surprisingly catchy collage of destruction and social decay in Rather’s voice (“A tide of violence and human misery / sex and drinking binges / dying of a Japanese nuclear bomb / a plane crash set an entire neighborhood on fire”) periodically punctuated by another cut-and-paste phrase of Rather informing the listener that it is “time for us to bug out.”
Early in 2000, the band’s record label, San Francisco’s Eerie Materials received a threatening email from CBS:

“Your use of [Dan Rather’s voice] significantly infringes upon the copyrights owned by CBS… [The] use of Mr. Rather’s voice has created a false impression that Mr. Rather and CBS have endorsed the sound recording which is misleading and deceptive to the public.”

Anyone who actually heard the track would have to be a total moron to believe it was some kind of CBS promotion.

Band member Mark Gunderson: “It really is about more than just Dan Rather. We wanted to look at network TV news and just explore this unpleasant tone of violence that’s seeping in through this innocuous channel.” The band argued that the song was protected by the First Amendment, which guarantees a right to free speech in parody. 2 Live Crew had tested that out in 1994 when the publishers of Roy Orbison’s “Oh, Pretty Woman” filed suit in response to a track from Two Live Crew’s 1989 release As Clean As They Wanna Be (a less offensive counterpart to the As Nasty As They Wanna Be LP, which was banned by the city of Miami for being ‘obscene’). The United States Supreme Court unanimously overturned a previous ruling and agreed that 2 Live Crew’s parody was Constitutionally protected, quoting Fisher vs. Dees: “[b]iting criticism suppresses demand [while] copyright infringement usurps it.”

Despite this notable precedent, Eerie Materials pulled the single from shelves. Gunderson sent an inflammatory letter to CBS attorney Sanford I. Kryle arguing his points:

“As we watched Rather convey the news each night, we were struck at the brutal violence that was delivered, day in, day out... The title itself, “Rocked By Rape”, is not the result of some clever editing trick on our part but was actually spoken by Rather during one broadcast...

I firmly believe that we have broken no laws in the music we’ve done, but to defend this belief in a court of law is impossible because your deep corporate pockets would simply drown us before we got before the judge. Seeing corporations stampede towards the almighty dollar while individual rights get crushed underfoot is what truly makes my blood boil.”

Negativland member Don Joyce, who had already gone though the routine before, fought on behalf of the Evolution Control Committee and followed up with a letter of his own: “[If you actually listen to the track] you might find that this musical collage is interesting, humorous, and a perfectly valid public response to the totally public and unavoidable media machine you happen to work for... Small, independent audio collage artists like ECC however are in constant danger from kneejerk corporate repressions of their sampled work like the one you are pursuing here, in which you hope to intimidate this perfectly valid work of art out of existence with the spectre of your bottomless pockets and presumed ability to legally and economically ruin their lives... Your employers are in no danger of losing their global grip on... anything.”

But it goes without saying that the single is still out of print, due to fear that an attack from CBS could single-handedly decimate the Evolution Control Committee’s independent record company. Though that situation is highly unfortunate, the band still gets the last laugh since the track is in wide circulation on Napster for anyone who wants to hear it.

So whatever you may think of the whole file-sharing controversy, it’s nice to see that its unpoliceable, free-for-all status might actually be protecting the public’s freedom of speech from being trampled by the big corporations with all the money. Yet, I cannot help but think back to what Luther Campbell said in 2 Live Crew’s inspirational “Banned in the USA” :

“What is this? This is not China! This is not Russia! This is not the place where they brought down the wall! This is America! We have the right to say what we want to say. We have the right to do what we want to do. We have the freedom of expression! We have the freedom of choice! And you, Chinese, black, green, purple, Jew, you have the right to listen to whoever you want to... Because this is the land of the free.”