Metallica are a business as well as a music juggernaut in the world of Classic Heavy Metal. Cross them at your peril – as many people have found out over the years. But would they go after their own fans to protect their business interests? And if so, would there be a clear winner? Let’s find out, as we read more about the famous case where Metallica sued Napster.
Metallica are a famously litigious band. They have a track record of ferociously pursuing anyone they suspect of stealing what was rightfully their’s. ‘You are so sued‘ could even be a Metallica motto. Here’s a run down of a few examples.
- In 2000, they sued French old-school cosmetics and skincare brand Guerlain (established 1828!!) for releasing a ‘Metallica’ branded retailing at perfume at $175 a bottle. The fragrance was based on spicy vanilla, with some background floral notes, but the stench of brand theft was too much for Metallica (the band), who filed suit for trademark infringement, trademark dilution and unfair competition. ‘They’re advertising the perfume on websites and on playbills in New York and we just can’t have that,’ said Metallica attack-dog lawyer Jill Pietrini at the time, who went after department store stockists Neiman Marcus and Bergdorf Goodman for good measure. Guerlain ended up settling out of court and re-branded the perfume as ‘Metalys’, whilst the stores were requested to destroy all their ‘Metallica’ branded stock.
- In the late 1990s there was a flurry of suits against (e.g.) Pierre Cardin for hawking Metallica tuxedos, Cosmar (Metallica nailfiles), Victoria’s Secret (Metallica lip pencils) and Kaboodles (Metallica cosmetics again). ‘ I don’t know what the thought process is here,” said Pietrini in wonderment, though she presumably wasn’t complaining too much back at the office, given the flurry of work being generated for her law firm. “I’m not sure why they think they can get away with it. Anyone who does a trademark search would come up with the Metallica name and see how much we protect the trademark.’ More settlements followed, with offending lines discontinued.
- Nearer the knuckle, since it related to music theft, there were lawsuits against retailer N2K and independent record label Outlaw records over the sale of a bootleg live album. That came a few years after they’d threatened an up-and-coming online retailed (Amazon.com no less) over the sale of an album of rare unreleased material. That was part of the explanation for their decision to release ‘Garage Inc’ in 1998, with various covers and B-sides. Metallica appeared to be missing out on sales, and thus made sure to rectify that situation.
So Metallica were business-savvy. They registered their name as a trademark all over the world, including for clothing and fashion items that they themselves were selling. They wouldn’t tolerate infringement, and by the 1990s, they had plenty of legal and financial muscle to enforce their rights, even against some big-name corporates like those above.
(You can’t really help but acknowledge that Pietrini had a point here. There may well have been an absence of Metallica fans (or metal heads more generally) in the Guerlain marketing department in the 1990s, but the trademarks were properly and transparently registered, so those copying brands must have known they were taking the piss. ‘Sued by a heavy metal band? It’ll never happen,’ they may have thought, knowing nothing of the tenaciousness of Lars Ulrich.
So when Ulrich decided to go after the music sharing platform Napster in early 2000, and corralled his management team at Q Prime to help him, it would have felt like a regular day at the office. Nothing out of the ordinary at all.
Napster, launched in June 1999, was designed and built by Northeastern University freshman Shawn Fanning with a couple of college friends when he was just 19 years old, at the point in time where entrepreneurs were still trying to figure out how to best exploit the potential offered by the internet. MP3 was emerging as one of the most popular digital formats for music, and was already commonly used for sharing music files online. Surely there was scope to build a commercial platform at scale.
Fanning set up Napster with the idea of having a single platform through which music could be shared, not only amongst his friends locally, but potentially by anyone, especially the American college student population, which was early-internet savvy, and loved music. The technology was nothing too complex – Napster would not host any music on its own servers – it was basically a program to index and search files located on the local machines of its users.
Those users could make their music files public for sharing – Napster would then list the available public files, which could in turn be picked up by other users around the globe – hence ‘Peer to Peer’ sharing. If one user, anywhere in the world, could get hold of a track and make it public, then it would be available to the entire Napster community – a community that was rapidly growing into the tens-of-millions. (Believe it or not, considering its short lifespan, Napster had more users than Yahoo at one point – 80 million versus 54 million). Downloading in this way gave that community access to masses of free music (though of course that meant no cut for Napster from regular file sharing transactions).
Napster was even a big cultural reference for a while, with Hollywood movies making reference to the music juggernaut that was building up a head of steam to crush Napster.
The trouble began when someone in Team Metallica realized that a new song of theirs, ‘I Disappear’ was being played on the radio, despite the fact that it had never been released through any official channels, and in fact had been earmarked to appear on the forthcoming soundtrack CD for the movie ‘Mission: Impossible 2’. None too pleased with this state of affairs, Ulrich ordered an investigation which led straight to Napster – not only was the platform facilitating the sharing of that particular track, but they also had the virtually the entire Metallica back catalogue available to download for free.
Metallica reacted characteristically. They sued Napster in the district court in California, alleging copywrite infringement, unlawful use of a digital audio device, and even violation of the Racketeer Influenced and Corrupt Organization Act. Always willing to widen the net, they also sued colleges including Indiana University and Yale for allowing the Napster platform to be accessed on their infrastructure.
Lars Ulrich released a typically plaintiff statement, complaining about being ‘sickened’ by this ‘trafficking in stolen goods.’
But probably the start of Metallica’s reputational problems came with a statement by a Metallica lawyer, one Howard King, who promised that ‘We will…see if we can find the people who have downloaded [Metallica files] and if we can then we will go after them.‘ Metallica hadn’t sued fans directly, but were making clear their intent to hunt them down.
A consulting firm was hired, and complied a list of over 300,000 internet users in a single weekend who were alleged to have downloaded Metallica songs. Never one to miss a publicity window, Ulrich hand delivered that list of names personally to Napster’s office – 13 boxes and 60,000-odd pages of legal documentation in support of his lawsuit.
Dominoes quickly began to tumble. Yale and Indiana Universities blocked students from accessing Napster on their campuses. Hundreds of thousands of Napster users identified by Metallica were kicked off the platform (though the tech savvy amongst them made quick re-entries). Napster were caught in a pincer movement with multiple players. Industry body, the Recording Industry Association of America (RIAA) had also filed suit – to less media fanfare, to be sure, but still representing the views of a wide cross section of the recording industry. Other artists also piled in.- rap god Dr. Dre was another anti-Napster litigant.
The platform had its supporters in the music business though. New heavy metal kids on the block Limp Bizkit were prominent, advocating for Napster as a promotional platform, almost like radio play for bands that conventional radio stations and DJs wouldn’t touch. Lead singer Fred Durst was echoing a growing sentiment when he said this if the anti-Napster brigade:
‘they’re really worried about their bank accounts.‘Fred Durst
There was a growing sense in some quarters that Napster was simply a modern actor in a process that had been going on for years. In earlier generations, kids would swap and copy tapes, or record songs direct from radio (using the features on their stereos specifically designed for that, like tape-to-tape dubbing.) But that never stopped them buying Metallica albums and t-shirts. Ironically, Metallica had first grown as a force in San Francisco by widespread sharing and copying of their first demo released on the Metal Massacre compilation (plus other bootlegged cassettes of their shows). Wasn’t Napster just an updated version of the same?
Yes and no – the main difference was scale. With millions of people having access to perfect digital copies of tracks, how many would fork out for the CD? In previous years, fans might tire of a low quality dubbed tape and get a bought copy instead, but did that still hold true here?
In the early days of mass internet usage, there was always going to be a legal shakeout for start-up services like Napster, who tested the limits to breaking point. Napster never stood much of a chance in court, and sure enough, judges started to rule against them. They were forced to filter out specified content and block named user accounts. The writing was on the wall – Napster desperately tried to protect itself via a buyout by the German Media giant Bertelsmann, but even that was blocked on conflict-of-interest grounds. Napster ceased trading in 2001 and was liquidated in 2002, just over 3 years after launching. Napster still exists as a brand, but is now a very different platform from what it was.
Who Really Won?
So, another open and shut legal win for Metallica, right? Well yes, in a strict technical sense.
Reputationally, things are less clear cut, and Metallica suffered severe damage on 2 counts – they had gone after their own fans, having 300,000 and more banned from the Napster platform. And, they were rich and powerful, now an establishment band, protecting their own (already inflated) bank accounts. Where were the heavy metal upstarts who shunned the establishment at all costs back in the day?
Metallica, it must be said, were often authors of their own reputational misfortune. At a US Senate hearing on the subject, Lars Ulrich turned up to testify in a massive limousine, pictures of which flashed around the world. Here was the money-bags businessman out to crucify the little guy again.
Fans and media commentators started to turn against them the longer things dragged on, expressing their outrage in increasingly creative ways. There was a cartoon series depicting Ulrich as a money-obsessed loudmouth and James Hetfield as a neanderthal / ogre character yelling banal slogans – ‘Money Good!! Napster Bad!!’.
One of the most egregious examples of Metallica misjudgement came at a gig in Washington, where they interrupted their own set to play a video lecturing fans on the evils of copywrite theft. Fans who’d spent big money on tickets and merch on the day.
Things finally reached a nadir at the MTV Music Video Awards in 2000. Ulrich agreed to appear in a video skit with the host, Marlon Wayans, where he raided a college kid’s dorm room, lectured him on theft, then stole (no, sorry, shared) all his stuff, and his girlfriend. Memorable tagline: ‘Sharing’s only fun when it’s not your stuff.’ Look, you decide, but it’s pretty cringeworthy as far as The Hawk is concerned. The public section of the audience seemed to agree, judging by the loud booing.
The Next Level
The awards show organizers then doubled down by having Shawn Fanning himself present an award. He strolled on wearing a Metallica t-shirt, quipping ‘I borrowed this T-shirt from a friend. If I like it, I’ll buy one of my own.’ Cue wild cheering from the earlier boo-ers. The show was representative of where public sympathy lay at the time, and it wasn’t with the industry or its self-appointed defenders. Ulrich himself presumably found it hilarious after his own earlier comedy routine, though he inexplicably stormed out of the venue early, later bitching to Playboy magazine that it had been ‘the worst awards show … that I’ve ever been to.’
The Wash Up
How do we see things over 20 years later? In truth, most people’s opinions probably haven’t changed that much. Classic Metal Hawk’s view certainly is more or less the same now as it was at the time. As said, a legal shake-out was required in those early digital days to determine what was and was not acceptable as regards the sharing of music in the new digital age. It’s certainly an area that was ripe for policy makers to examine, with full input from the industry and performers.
But from Metallica’s point of view, inserting themselves directly into the fray in a legal confrontation was disastrous, and their reputation has never fully recovered with many people. They should have left it to the industry to front the action, which would have had the same technical outcome.
Metallica’s reputation may have already been on the slide with a lot of fans – after all, by 2000, they’d long since released their best thrash album, ‘Master of Puppets‘, and their big commercial smash, in The Black album. They were never likely to hit either of those particular heights again, and indeed have not done so. Anyone wanna comment that ‘Reload’ was how they first fell in love with Metallica? At least Lou Reed didn’t appear on it.
Not For the Fans
So some fans were turning off them, wondering what the point was anymore. But with their lawsuit, Metallica, already losing relevance for metal fans, turned themselves into the epitome of the establishment, essentially shilling on behalf of the record industry for the already rich to get even richer. It was never going to endear them to anyone without a strong financial stake.
If you doubt that, consider that most of the artists who came out against Napster at the time of the litigation tended to be big selling, established acts. Those in the pro-Napster camp were smaller, up and coming artists who welcomed the exposure that such a platform could give them at the time, even if they didn’t earn any money from it. You have to wonder what Metallica’s attitude would have been had Napster been around in 1981 when they were still trying to get a break.
Did the case help fellow artists avoid be ripped off by online cowboys? Hardly. The ultimate wash-up for the way music is consumed online is that these days, most performers get a pittance from streaming, and are finding it harder and harder to make a living – so there was no long-term win for artists outside the elite. And it’s hard to recall many top-ranking acts showing much solidarity with them. It’s the mainstream industry ripping them off instead of the cowboys.
It would have been nice if Metallica had used their muscle to contribute to shaping a fairer overall on-line settlement for ALL performers as well as defending their own interests – but that’s a utopian wish. The band remained largely unrepentant over the years. They did soften around the edges – Ulrich later said it was ‘awesome’ that fans could download songs on-line in places like Saudi Arabia – repressive regimes where fans would be unable to buy a CD. But they’ve never expressed any regret over launching the Napster case.
‘If you’d stop being a Metallica fan because I won’t give you my music for free, then f*** you.’Lars Ulrich
So said Ulrich defiantly, when asked to defend his actions. Fair enough – that’s a legally watertight sentiment. Yet in the big picture, still sounds as tin-eared now as it seemed over 20 years ago.
On which happy note, let’s play out with one of those Lou Reed collaboration numbers. In common with the overall level of ridiculousness, the album was entitled ‘Lulu’, and here’s the main single from it. Don’t say The Hawk didn’t warn you.
This is sure to kick off a debate – did Metallica simply do what they had to in order to protect their property? Or did they go too far in placing themselves in the middle of the story? What are the lessons for music and performers as we look back?
Share your thoughts in the comments below, or send feedback direct to The Hawk.