September 12, 2000 6:00 PM PDT
The Smashing Pumpkins take music directly to Napster fans
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The 25-song album, titled "Machina II: The Friends and Enemies of Modern Music," is being downloaded by fans via Napster and various Web sites highlighted on the message boards at The Smashing Pumpkins' Web site.
According to a frequently asked question (FAQ) posting on the band's Web site, just 25 vinyl copies of the album were released. Sonicnet.com reported that a note included with the albums stated that "Machina II" was released on vinyl as a "final f--- you to a record label that didn't give (The Pumpkins) the support they deserved."
The note also stated: "Just to clear up any possible confusion, this is the final album from the band. There are 25 copies. There will not be a CD pressing."
The release was first reported by The Drudge Report and later by MTV.
According to the FAQ, which could not be confirmed as being produced by the band: "Currently, the only source available is MP3. Since none of the three known online recipients had access to an ultra-high-end audiophile turntable...one of them used what they had and made MP3s so that the new songs could be distributed immediately.
"There are plenty of Web/FTP sites and mirrors hosting the new songs, as well as people sharing files via Napster, AIM, etc. Look around a bit, the info has been posted in many places many times."
By encouraging the distribution of their songs via the MP3 format, The Smashing Pumpkins could raise the stakes in the ongoing copyright battles between record labels and proponents of file sharing by allowing artists disenchanted with their record labels to reach their fans directly.
Last week, a federal judge ruled that MP3.com willfully infringed the copyright of Seagram's Universal Music Group by making MP3s available for download. A federal appeals court in San Francisco also is considering an injunction that was issued in a similar case against Napster.
"It sounds a little like what Stephen King did when he published his most recent book over the Internet," said Gregory Victoroff, an entertainment and copyright attorney and a co-author of Musicians Business and Legal Guide. "In the same way that Smashing Pumpkins bypassed its record label, Stephen King bypassed his publisher.
"The recording industry could be very upset, as this could be indicating a trend where the artist bypasses the label and goes directly to the fans."
The Smashing Pumpkins is not the first band to go it alone from their record company and release songs on the Internet. Other artists who have made a similar move include Courtney Love and Public Enemy.
Love, who is being sued by Geffen Records for allegedly failing to meet her contractual obligations, has been highly critical of the record companies for leaving artists with little money.
Fred von Lohmann, a copyright attorney with Morrisson & Foerster, said the legal implications of The Smashing Pumpkins' music release on the Internet depend on the band's contract with Virgin Records.
"A lot will turn on what Smashing Pumpkins' deal looks like. Some bands own everything outright and retain the right to release stuff, and other bands are forced to turn stuff over," von Lohmann said. "Most artists do not own their recordings."
Word of the free release spread quickly on the message board of The Smashing Pumpkins' Web site and other fan sites. When Greg Habermann heard the news, he made the songs available for download on his Web site, "www.downward-spiral.com," until his server administrator took them down because of an overflow of traffic.
"Our hits shot through the roof," Habermann said in a phone interview. "They increased by 500 percent."