P2P survival hinges on Napster's fate

SAN FRANCISCO--In a dimly lit hotel ballroom here Friday, Stanford University law professor Lawrence Lessig, best known for his role in the Microsoft antitrust case, slipped into the role of a digital Paul Revere.

Speaking to an audience of peer-to-peer software developers, many of whose products are much closer to a Microsoft Outlook than to the industry-shaking file-swapping Napster service, he issued a pointed warning: The threat to Napster's survival is a threat to the developers' freedom, he said.

The Napster ruling from the 9th U.S. Circuit Court of Appeals on Monday violated principles set up by the Supreme Court in earlier debates over protecting children from online pornography, in which judges said the Internet was too young to make hard-and-fast rules, Lessig said. Stepping away from that flexibility poses an immediate danger to anyone developing technologies that threaten established business models, he added.

If courts decide to regulate the Net now, "then existing (economic) interests...get to decide what forms of innovation get allowed," Lessig warned. "Not just for Napster, but for any new technology."

In a room full of developers whose loyalties largely lay with the free software, open source, and the underground programming communities, Lessig's call to political action fell on fertile ground.

Friday's enthusiastic response highlights what could become the technology industry's most divisive culture war, a debate that is already radicalizing a growing segment of programmers and legal advocates.

Arrayed against such anti-establishment forces are some of the world's largest technology companies, many of which are supporting the record companies and movie studios in their drives to maintain and even extend their control over the way that their works are transmitted and used on the Internet, Lessig noted.

Intel, IBM and Microsoft are among the leading proponents of technologies that give copyright holders the ability to seed their work with rules that control just how many times a song or other work can be copied, played or otherwise redistributed.

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Intel and IBM are part of a group building protections against unauthorized use into computer and device hardware, while Microsoft is building similar technologies directly into its operating systems. These security services have only been employed in a few cases, but they are becoming an everyday part of business for copyright holders and the big technology companies that work with them.

It's partly that prospect that has prompted a growing group of programmers, attorneys and free-speech advocates to call for political action--and increasingly for old-fashioned civil disobedience.

"After (Monday's) 9th Circuit case, I think the only way to deal with law on the Internet is to ignore it flagrantly," said John Perry Barlow, a founder of the Electronic Frontier Foundation and one of the leading critics of the Recording Industry Association of America, speaking to the peer-to-peer conference audience. "I want everyone in this room to consider themselves as revolutionaries and go out and develop whatever they damn well please, whatever the law says."

Drawing these forces together is the combination of the Napster case; the movie industry's attempt to rid the Net of DeCSS, a software program that allows DVD anti-piracy protections to be cracked; and a dawning public realization of the implications of copyright laws passed in 1998.

These laws bar not only the unauthorized distribution of copyrighted works, but the distribution of technologies that are primarily designed to crack digital anti-piracy protections. Some academics have said they are even blocked from discussing how they broke through the Secure Digital Music Initiative's technology, which the anti-piracy standard body was testing in a public hacking challenge.

Nevertheless, courts have not yet been sympathetic to arguments based on free speech concerns.

On Monday, the appeals court dismissed the idea that Napster itself raised any free speech issues. Downloading copyrighted works without pay did not fall into any categories of "fair use," the judges said.

"There was a preliminary determination here that Napster users are not fair users," the decision read in a short paragraph on the issue. "Uses of copyrighted material that are not fair uses are rightfully enjoined."

With little luck in courts so far, those who believe copyright holders are gaining too much control are turning to the political sphere. Congress will listen if millions of people are concerned, they say.

It will be the slow disappearance of songs from Napster, as the record industry submits songs to be blocked from the trading service, that will galvanize the masses, Lessig predicted Friday.

"One song at a time, people will become aware that there is a political battle," he said. "It's time we should be fighting it."