Napster trial won't end music industry headaches

The Recording Industry Association of America is seeking an injunction against the music start-up that would lock major-label songs from being traded using Napster's music-swapping service. The industry argues that the service is contributing to massive copyright violations as Napster users trade tens of thousands of songs every day.

Napster, in turn, has raised the stakes by claiming that copyright law protects individuals who download or post copyrighted songs online--as long as they're not making money from their actions. That means Napster isn't doing anything wrong.

"If Napster users are not acting illegally, then there is no contributory (copyright) infringement," Napster attorney David Boies said in a recent conversation with reporters.

The high-profile attorney has brought in his antitrust experience, hard-won in his battle against Microsoft, to the Napster case, charging that the record industry has collectively abused its copyrights. This means it should lose the right to enforce them, he says.

Attorneys say federal judge Marilyn Patel--a thoughtful jurist who has tackled other controversial technology cases in the past--will be unlikely to rule today. Her decision on Napster's short-term future, based on today's oral arguments, is likely to come sometime within the next few days or weeks.

The online music world will be hanging on those words. But at the same time, the lawsuit has been overtaken by recent events. Other technologies such as Gnutella and Freenet are springing up that could provide safer havens for Napster users, and even underground Napster servers unaffiliated with the company are gaining use.

"I think almost nothing is at stake," said Forrester Research analyst Eric Sheirer. "Napster has marginal business prospects. Whether or not they win, I think their business prospects remain marginal at best."

Napster plays guinea pig
At issue is more than the future of Napster itself.

The lawsuit is serving as a test case for how ordinary copyright law can be applied to the quickly changing world of digital music. Napster has used several arguments that would give its services the same protections from legal liability that are enjoyed by Internet service providers and makers of videocassette recorders. If the judge in the case accepts either of these arguments, it could open the door for new music-trading services similar to Napster.

Some free-speech advocates have even said that the ruling could threaten the ability of ordinary Web companies to link to outside content. Because no song files actually travel through Napster servers, the company functions as a kind of directory, providing links to other computers that are analogous to traditional Web search engines. And simply pointing to other places on the Net is protected by the First Amendment, free-speech activists say.

"That's all protected speech," said Robin Gross, staff counsel for the Electronic Frontier Foundation, which has not taken an official stance in the case.

The record industry disagrees, saying the case is about shutting down a company that has built its business on copyright violations, not about the underlying technology.

"We don't view these as linking cases," said RIAA staff counsel Steven Fabrizio, speaking of Napster and similar lawsuits against Scour.net and MP3Board.com. "These are businesses based on piracy."

The case will be closely watched by artists Metallica and Dr. Dre, who have filed their own lawsuits against the company.

Los Angeles attorney Howard King, who represents the performers, predicts that if Napster loses today's arguments, it will lose the case altogether. And if it's shut down as a result, that means his clients have gotten what they want, too.

"The most important part of the case would be over," King said. "That's the whole shooting match."

Does Napster even matter?
Even if Napster is forced to close its doors while waiting for another trial, the revolution in free music and file sharing it helped spark is unlikely to dissipate.

Services such as Gnutella and Freenet, which are less centralized and therefore more difficult to shut down, are gaining ground online. These technologies also allow people to exchange video and multimedia files, so they could be even more of an irritant to the entertainment industry than Napster is.

In addition, if Napster the company is forced to close its digital doors, Napster the technology will still exist, its aficionados note.

Open-source programmers have created a way for people with a bit of technical knowledge to create and run their own Napster servers, allowing people to swap songs using the Napster software but without using the company's servers.

These unaffiliated servers can be accessed using a program dubbed "Napigator"--a directory to parallel Napster servers that also have no affiliation to the software company.

"Whether they win or lose, the technology will be out there," Forrester's Scheirer said.