Napster Gone Barbados

Robot Monster vs. International Copyright Law

Napster Gone Barbados
Illustration By Nathan Jensen

Love it or hate it, there's no denying that the robot monster created by Napster mastermind Shawn Fanning has the power to pulverize skyscrapers. Fanning's creation was busy shaking the corporate headquarters of Sony, Universal, and the other three companies that make up the multinational monolith we might as well call Acme Records when some fighter jets deployed by the federal courts distracted him last summer. But you know robot monsters -- all it takes is a couple of poorly aimed missiles to piss them off. Suddenly, they're breathing fire on the Capitol building, then marching into the ocean on their way to demolish Big Ben.

That's the scenario Napster boosters and detractors both have been painting as they try convincing the rest of the world to either befriend the beast or kill it while we still have time. Offshore Napster. Offshore Napster.

That phrase has been repeated -- sometimes with hope, sometimes with terror -- by attorneys, label reps, and hackers since the Recording Industry Association of America (RIAA) first brandished its lawsuits. If we don't find some way to cope with Napster now, the theory goes, it'll migrate offshore and become unstoppable.

But could it really be that easy? Irresistible as we might find the image of Shawn Fanning and Napster CEO Hank Barry counting dollars while sipping margaritas on some Caribbean beach, can they actually solve all their problems just by relocating? And if they can, why the hell are they still hanging out in a drab litigation magnet like San Mateo, Calif.? Here's what you learn once you start investigating questions such as this: Nobody really knows.

Sorry, but that's life in the Beckett-like world of international copyright law. As Duff Berschback, entertainment attorney with Nashville firm Benson & Associates explains, "There really is no such thing as international copyright law. When people talk about international copyright law, what they're talking about is the law of different countries sort of reciprocally applied to each other through an international treaty like the Berne Convention."

Basically, this means that to avoid the legal hassles they've encountered in the U.S., Barry and Fanning would have to set up their beach chairs and sippy straws on an island that hasn't signed the Berne Convention. Unfortunately, more than 120 nations are Berne signatories, including Barbados.

Still, there are way more than 120 countries in the world, right? A quick glance at United States Copyright Office circular number 38A, which details the copyright relations between the U.S. and every independent country in the world, helps us narrow down Napster's relocation choices. Let's see. Iran hasn't signed the Berne Convention. And there's Iraq. And, um, Ethiopia. And ... Tonga! There are probably beaches in Tonga, right?

"It's kind of a Catch-22," Berschback admits. "On the one hand, you've got to find a country that's relatively friendly and respects the rule of law and respects private property. But chances are, if a country is like that, it's going to be a member of the Berne Convention. Technically, yes, you could set up shop there. But the question is, do you want to set up shop there?"

Before you decide that willing offshore hosts are limited to banana republics, consider this: Although the Berne Convention was first drafted at the end of the 19th century, the U.S. didn't sign the damn thing until 1989. That's right, up until 12 years ago, the United States was one of those rogue nations that didn't respect the rule of law. Maybe that's not quite as delicious an irony as music publishers suing Universal claiming the exact same copyright infringement for which Universal went after MP3.com, but it's still a good example that when it comes to copyrights, what's good for the goose can get the gander's ass sautéed.

Sautéed gander ass may be exactly the type of thing Napster's principals would have to learn to eat, if you buy Berschback's view that going offshore means surrendering to the whims of backwater tyrants. But others are more optimistic about overseas prospects. Sean Hastings, CEO of HavenCo, believes that copyright laws themselves are the real threat to freedom, and that trying to apply them in a digital age is downright dangerous.

"Any country that attempts to do so will not only be threatening the freedom of its people, but will also seriously damage its own economy and destroy its ability to compete in the global marketplace," Hastings says. "In the long run, all Internet companies will tend to flee countries that seek to vigorously enforce copyright."

HavenCo aims to give those companies someplace they can flee to -- a country called Sealand, which sounds like an anarchist's wet dream. It's a World War II-era military fortress rising up out of the ocean six miles off the coast of England. Theoretically a sovereign principality since 1967, when an adventurous Brit occupied the fort and declared it his own, all the country's 'land' has been leased to HavenCo, which offers collocation facilities to Internet businesses seeking to avoid regulation. According to marketing and media relations VP Jo Hastings, beyond launching electronic attacks, spamming, or distributing child pornography, "a client cannot be deemed as doing anything illegal as far as HavenCo or the government of Sealand are concerned."

Alas, there's not much room in the fort, so while Hank and Shawn could set their servers up in Sealand, they'd have to find someplace else to live. And since Sealand doesn't currently allow companies to incorporate there, Jo Hastings warns that HavenCo, "cannot necessarily protect a U.S. citizen or corporation that breaks U.S. law ... It's up to our clients to ensure that they're not breaking any laws of their native country or jurisdiction of incorporation."

Which means we're back to island hopping, looking for a home where the regulations are lax, or maybe just malleable. Intellectual-property specialist Jonathan Band from the D.C. firm Morrison & Foerster suggests that anyone looking to set up a Napster-style service overseas might actually prefer a country where, "the judicial system is corrupt. ... You could have a place where, even if in theory you could sue them, in a practical matter you can't because the judicial system is so ineffective -- which is the case in many places."

Hmm. Maybe one of the 990 Solomon Islands would qualify. They've got plenty of beaches (and some active volcanoes, too); they have yet to sign Berne; and their government Web site tells visitors how they can "buy the Laws of the Solomon Islands." (It turns out they're just offering hardbound versions of their legal code for around $1,000 U.S., but since those laws are less than five years old, maybe the purchase price includes selective revisions.)

It's a mess, isn't it? I feel like the little boy who loves the robot monster and has only his tears to offer as explanation for why all the adults keep trying to blow it up. But wherever our large, scaly friend heads -- whether he swims to Sealand, or Solomon, or toughs it out in San Mateo -- there's comfort in the fact that there's always a sequel. And whether they're Godzilla rescuing Tokyo from Rodan, or Ahnold becoming the father figure little Edward Furlong always needed, robot monsters always turn out to be misunderstood heroes in the sequel. end story


"Napster Gone Barbados" originally appeared in Conques magazine. Tim Quirk is the singer/guitarist for Too Much Joy and Wonderlick. The Web site: www.sayhername.com.

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