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Napster also points to a significant precedent set by the Supreme Court. In 1984, the high court ruled that Universal Studios could not prevent Sony from introducing the Betamax VCR just because the machine could be used for pirating videos, noting that the "sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes, or, indeed, is merely capable of substantial noninfringing uses." In 1999, the RIAA sued Diamond Multimedia, maker of a portable MP3 player called the Rio, on the grounds that the device facilitates piracy. A federal appeals court ruled in Diamond’s favor, citing the Betamax decision as a precedent.
Given that many artists are deliberately offering their music for free online as a way of making a name for themselves, it’s easy to argue that there’s more to Napster than piracy–and, thus, that it shouldn’t be banned.
This argument is undercut by the uncomfortable fact that the vast majority of Napster searches–87 percent according to the RIAA, though Napster naturally disputes that figure–are for copyrighted material. It is further undercut by some embarrassing internal e-mails uncovered in mid-June. In one message, a Napster executive flatly states that the program’s users "are exchanging pirated music"; in another, a manager comments that "admitting we know Napster is used for the transfer of illegal MP3 files might not be the best thing to do."
Napster’s lawyers face no shortage of backup arguments–most radically, that attempts "to use the limited monopoly rights bestowed on a copyright holder to control competition in an area outside the scope of the copyright" constitute "copyright misuse," which "bars the copyright holder from enforcing its copyright unless and until its misuse is ‘cured.’" Napster’s brief argues that since the plaintiffs have themselves engaged in behavior comparable to Napster’s–Sony, for example, sells "a portable listening device…that plays MP3 files, regardless of whether the files were made with the authorization of the copyright holders"–they clearly don’t object in principle to such technologies. Their actual agenda, the brief continues, is to quell competition.
Morally, this is strong stuff. Legally, it’s a bit more iffy.
The record industry appeared to win a major victory on July 26, when Judge Marilyn Patel granted a preliminary injunction ordering Napster to stop the trading until the issue was settled at trial. She also remarked that the RIAA had "a strong likelihood of success on the merits of the case," heaping special scorn on the defendant’s interpretation of the Audio Home Recording Act. "It’s irrelevant," she explained. "It doesn’t apply to computers or hard drives. And Napster isn’t an audio recording device."
Two days later, some unexpected news woke the plaintiffs from their champagne hangovers: An appeals court had stayed the injunction, arguing that the suit raises legal questions that have not yet been reviewed by the courts. The two-judge panel will either reverse or uphold the ruling in mid-September. If it’s reversed, Judge Patel may well reconsider her initial reaction to Napster’s legal arguments.
And if the injunction is upheld? Then little will change. Digital file sharing is here to stay, whether or not Napster prevails in court. As other programmers follow in Shawn Fanning’s footsteps, software with even more radical implications has appeared, bypassing both legal and moral arguments about intellectual property rights.
Napster may irritate the music industry, but at least it’s a sitting target: It has an owner that can be sued, and it relies on a set of servers that can be shut down. Neither drawback afflicts Gnutella, a rival program created by Justin Frankel and Tom Pepper, the same people responsible for the popular MP3 player WinAmp. With Gnutella, every client is a server. There are no central stations through which file-swappers must pass; anyone can get any file–not just music–from anyone else, anonymously. And thanks to an unusual and still somewhat mysterious set of events, the program has no owner to sue.
Frankel and Pepper work for America Online. In March, when they announced what they were developing, AOL pulled the plug in less than a day, calling Gnutella "an unauthorized freelance project." There’s been a lot of speculation as to what actually happened behind the scenes. AOL might have been genuinely unaware of what its programmers were cooking up; or it might have dumped Gnutella when it realized the program could provoke a Napster-style lawsuit; or it might have decided to dump it after its merger with Time Warner, a company with lots of copyrights to protect. Whatever happened, AOL’s decision to cut the program free didn’t suppress it: The source code was soon posted on the Net, and a network of programmers has been working to improve it ever since. (Anyone who’d like to can download the results.)
Gnutella isn’t a perfect program either. "With no notion of whom to trust, a network will break down once it gets large enough," comments David Weekly, a recent Stanford graduate (he got his bachelor’s degree in June) who created one of the Net’s first MP3 jukeboxes. "Give Gnutella another six to 12 months, and it will have killed itself," he argues. "Not merely from the bandwidth concerns, but mainly from the fact that 0.1 percent of the Gnutella population might run a spam, and this would be enough to bring it down." (Already, a program called ShareZilla is on the market. If it performs the way it’s supposed to, it’ll attach the name of any Gnutella request to a spammer’s file. Thus, a search for a Tupac Shakur bootleg might turn up an ad for an online casino instead.)
The Gnutella community may yet overcome such problems. And if not, they still might be solved by yet another program, Freenet, that’s being developed by an Irish coder named Ian Clarke and the usual network of open-source geeks. Freenet promises far more autonomy and anonymity than are available now. It will be "completely decentralized, meaning that there is no person, computer, or organisation in control of Freenet or essential to its operation," the project’s home page explains. "This means that Freenet cannot be attacked like centralized peer-to-peer systems such as Napster." It also "learns to route requests more efficiently, automatically mirrors popular data, makes network flooding almost impossible, and moves data to where it is in greatest demand," thus solving some of the problems posed by Gnutella.
Freenet is still in its early stages of development, but it’s already inspiring a lot of hand wringing. And with yet more lawsuit-proof programs undoubtedly on the way, one has to wonder whether the RIAA’s legal strategy is sustainable in the long run. It might make more sense for the labels to ask whether such programs’ popularity represents unmet demand.