Settling lawsuits that could define an industry won't be that simple, of course. But analysts say a few of the technologies emerging do show some promise for bridging what has appeared to be an insurmountable gap between file-trading start-ups and a music industry loathe to lose control of its copyrights online.
One of the thorniest issues in Napster's lawsuit is figuring out whether it's possible to identify and block copyrighted songs as they're listed on Napster and similar services. The record industry says Napster must remove all major-label music or close its doors. Napster says it can't tell which tunes have such copyrights, so it would have to close its doors if the court requires it to block specific songs.
A few start-ups say they have an answer: Create a unique "fingerprint" for songs that can be easily read by Napster or other services, with little or no change to the actual client software.
Analysts say this approach holds promise. But if implemented, it would be a massive project without guarantees of total success.
"It's theoretically possible," said Forrester Research analyst Eric Scheirer. "But there are practical problems."
For Napster, Scour and other file-trading companies, the question of how to stop copyrighted songs from being traded using their services is soon likely to become more than academic. The record industry is suing Scour and MP3Board.com on similar grounds, claiming that they contribute to online copyright infringement.
Late last month, federal Judge Marilyn Hall Patel ordered Napster to block all major-label songs from its directory. If it couldn't do that, she said, the company would have to close its doors within just a few days.
"Napster wrote the software; it's up to them to write software that will remove from users the ability to copy copyrighted material," Patel said at the time. "They created a monster...That's the consequence they face."
Napster immediately appealed the injunction and won a temporary delay of the shutdown order while the 9th U.S. Circuit Court of Appeals reviews Patel's ruling. But the specter of either closing the service or finding a way to block individual songs hovers over the company's future.
A few companies have suggested that watermarks--individual, unique identifiers placed within songs--could help solve this problem. Napster could be given a list of watermarks and could block files that contain them, according to this reasoning.
But analysts and attorneys note that this solution has a flaw. Watermarks will work only for new songs, and many if not most of the songs traded through Napster are older releases. This plan would do nothing to stop music that has already been recorded without the marks.
That's where the fingerprinting comes in. It's possible to create unique identifiers for songs based on the music's audio properties. The technology has been used for years by companies that count how many times a song is played on the radio, for example.
Several companies, such as Tuneprint and Xift, are advocating that Napster and similar services apply their versions of the technology. Several of the big record companies and some of the file-swapping services are talking to these companies, although details on those negotiations aren't yet public.
This technology would get around tricky issues such as songs with the same names or the same song performed by different groups, the technology's backers say.
"If a human ear can tell the song is the same, then we can tell the song is the same," said Xift chief executive Anna Patterson.
That works fine in theory, the analysts say. The companies add that it might not even require major changes on the part of the programmers. When Napster lists files from a computer, the software returns a tiny bit of unique background information on the file being read as part of a long-standing Internet data-transfer protocol. This bit of information could be linked to a database of audio signatures without much work, Patterson said.
But it's exactly that database that could present the trickiest problem.
Almost a century of copyrighted recordings could be difficult to compile into a comprehensive database. It's not clear that each record label has a list of every single recording it has under copyright or that each label has the audio recording of every song that would be needed to create a comprehensive database of fingerprints.
"Even if they could fingerprint, (the record companies) don't have a master list," Forrester's Scheirer said. Putting this together would be a massive research project, even if it could be done, he added.
Nevertheless, the fingerprint idea is gaining some serious attention. Xift's Patterson says her company has talked to at least four of the "Big Five" record labels--which consist of Warner Music Group, Sony Music Group, Seagram's Universal Music Group, Bertelsmann's BMG Entertainment and EMI Recorded Music. Patterson said Xift is in serious discussions with at least one of the Internet companies being sued by the industry.
Napster would not give its opinion of the technology.
The record industry's next legal brief dealing with Patel's proposed injunction against Napster is due at the end of next week. The appeals court has scheduled a court date for the first week in October.