Last week a federal judge in San Francisco threw a roadblock onto Barry’s bridge. Judge Marilyn Hall Patel ordered all material copyrighted by the major record labels removed from Napster’s network, effectively shutting down the site, and the day after the ruling Barry’s voice was a study in resignation. “I think the injunction will end the service as we know it,” he said. The Recording Industry As-sociation of America and bands like Metallica hope he was right, since they view Napsteresque music swapping as nothing less than property theft on a massive scale. Although an eleventh-hour ruling by an appeals court lets Napster stay alive at least until mid-September, it’s another question whether any site built on the popular but controversial technol-ogy of “peer to peer” file sharing can survive over the long term. A jury trial is planned for later this year, and most legal experts think Napster will lose. “Seven large law firms are working against us,” says Barry. “We realize we have an uphill battle.”
For folks like the Napster user calling himself Bongoboy, a defeat would be a disaster. Like other Napster fans, he evidently spent the week hoarding free tunes for fear that they would eventually be placed out of bounds, and advised others in a Napster chat room, “Download as much as you can today!” Patel gave them good reason to rush. In a courthouse packed with hundreds of reporters, copyright lawyers and 20-year-old Napster founder turned dot-com celeb Shawn Fanning, the judge called the service “a monster” and charged that its primary use was to trade pirated music without compensating the copyright holders. She slapped down every argument practically before it escaped the mouth of attorney David Boies, who had considerably more success as the Justice Department’s hired gun in the fight against Microsoft. “It went as badly for Napster as it possibly could have,” says Lawrence Solum of Loyola Law School. The higher court’s intervention changed little: it just gave Napster more time to make its argument.
Even if Napster does vanish, its legacy will linger in the popularity of the peer-to-peer networks. Its success invigorated an old idea among techies: that appli-cations are more powerfulif users are not only accessing one central server but also mining the information stored on the computers of other users. In the case of Napster, users send music to each other directly from their hard drives, and the site itself consists only of an index of all the songs. A plethora of such services now exists, but observers disagree on whether they can continue to thwart the music industry. The sites differ in critical ways. Gnutella and Freenet lack the centralized index, and would be impossible to shut down because they aren’t even businesses–just scattered users. But if Napster’s appeal fails, the recording industry will have a powerful legal precedent with which to go after the users and at least keep the online pirates underground. Even major portals like AOL and Yahoo, where illegal file swapping occurs over e-mail and on bulletin boards, will have to clean up. The online music sites that survive will be those that have deals with the music labels to legally distribute their music.
With Hummer Winblad and other venture-capital firms now staying away from swapping services with questionable legal status, some Net companies are changing their strategies. Scour, a music- and video-swapping service that was sued by the motion-picture industry last month, is madly trying to strike deals with media companies and avert its day in court. GlobalScape, maker of the swapping software CuteMX, has indefinitely suspended the product. And new music sites like AppleSoup are pitching themselves as “legitimate” Napster clones, differing only in that they would pay record companies to carry their music.
Everyone, it seems, is moving to capitalize on the huge demand for cheap, easy-to-download mu- sic–the grass-roots ground- swell that catapulted Nap-ster into dot-com legend. The five major record labels all have their own music- downloading services in the trial or planning stage, but the scope of available tunes is only a fraction of what Nap- ster’s 20 million users col-lectively served up. Though much bad blood has been spilled, Napster itself could still survive if a record company buys it, or if it convinces the labels to let it sell the music to its users. There is no question that the record companies must compete online instead of litigating, or else watch a lawsuit-proof pirating technology emerge on the Net. “The onus is on the record industry to get more music out there right now,” says Talal Shamoon, who is working on the industry’s initiative to develop a secure digital-music format. Techies say that information wants to be free. Among the music-loving college-student set, so does music.
