Napster, the free music-downloading service beloved by millions, was in the news again this week. But there is not much agreement on what the news means.
What happened was that on Monday a U.S. federal appeals court upheld an injunction against Napster — though the district judge who wrote the injunction has been told to fine-tune it a little — requiring the controversial service to stop letting its users share copyrighted material, that is, get it for nothing.
The problem is, that is pretty much Napster’s whole reason for being. Once the reworded ruling comes through, perhaps as soon as a month from now, the upstart service with the demon-kitty icon will face three unpalatable options: It will have to restrict itself to dealing in noncopyrighted and authorized music (there is some, but nobody much seems to want it); it will have to shut down; or it will have to figure out some way of charging users for downloads. The last option is the most likely — in fact, the German media group Bertelsmann has already agreed to work with the embattled site to develop a fee-based service — but that will entail Napster ceasing to be Napster. Son of Napster, maybe, but not the cool, anti-establishment hero it is now.
Those are the facts and the choices. But what they portend for a very big part of the music industry is not so obvious, as this week’s clashing headlines showed. Some were sure that the ruling marked a passing of some sort: “Death of Napster!” said one. “Napster users make plans for the day the free music dies,” read another. But others saw question marks and unfolding horizons rather than black borders: “Is this the end for Napster?”; “Will Napster . . . download to a Caribbean island?” One maverick commentator even read the court’s decision as a blow, not to Napster, but to the recording industry, which has been busy popping champagne corks all week. Having lost their bogeyman, he said, the record companies will now have to come up with their own feasible digital-music scenario, something that has so far proved beyond them.
Napster itself has vowed to fight both the injunction and the lawsuit that looms beyond it. Opinion is divided as to who will prevail and what the battlefield will look like once the smoke of litigation has cleared, precisely because the field itself — the application of copyright law to the Internet — is still a blank slate. This is why the Napster case is being followed with such interest by other industries whose property is vulnerable to online “sharing” in the same way recorded music was, including publishing, films and software. Napster is the canary in the mine.
One thing is clear: The canary we know will die. Nobody thinks Napster can continue in its present form, unless (as some have seriously predicted) it moves offshore, along with the gambling concerns and the tax shelters, beyond the reach of U.S. law. Otherwise, fans will have to get used to the idea of subscription fees. Napster’s own surveys suggest that 70 percent of its users would be willing to pay as much as $15 a month for access. Whether they will or not, however, depends on the deals Napster can strike with the major record labels, which will certainly be scrambling in the meantime to develop their own online subscription services. Given the price of CDs, even $20 or $30 a month for access to a broad enough catalog would be a good deal.
But the death of the canary is not necessarily the end of the story. Why? Because for at least the past year, since Napster was hit with its first lawsuit, fans have been leaving the mine in droves — or preparing to. People like getting music for free, and as fast as the industry knocks down Napster and its defenses, the faster its cleverer clones proliferate. There are already a number of services available that cannot be traced because they operate without a central server. They are invulnerable to lawsuits because there is, literally, nothing to shut down.
So it is hard to predict what will happen next. It is even hard to decide what should happen next. There are those (the recording industry, for one) who say Napster and its offshoots are instruments for “electronic shoplifting.” They are probably right. But tens of millions of users couldn’t care less. Free music trading, like drinking alcohol or smoking pot or wanting abortions, is a phenomenon that is impervious to moralizing. If the law can’t stop it, as it has never stopped those other controversial activities, preaching certainly won’t. If it can’t be done legally, it will very likely continue to be done underground.
The only defenses then will be technological ones, and so far, the raiders have shown by far the most ingenuity. It might be best to put your money on them.
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