Why the Man Can't Bust Our Music


Conventional wisdom has it that yesterday's court order shutting down Napster will bring the burgeoning online trade in digital music files back under the copyright owners' control. It won't.

Napster—that giga-popular program that lets you search other users' hard drives through a network of servers and then download recordings directly from their computers—has emerged as Public Enemy Number One in the eyes of the recording industry and many musicians. Earlier this year, the big record labels sued Napster, accusing it of contributing to massive infringement of copyrights. Yesterday in San Francisco, federal Judge Marilyn Patel issued an injunction, forcing Napster to stop the trading until the matter goes to trial.

But don't expect this decision to tame the wild Web.

Napster is not the only file-trading tool out there. Others–most famously, Gnutella and FreeNet–are quickly establishing themselves. And many of these tools are not owned by companies that can be sued: They are open source projects developed by loose networks of programmers working for free. Nor, unlike Napster, do they rely on central servers that can be shut down.

They are, in short, impervious to legal assault. They're here to stay. And there's nothing the big labels can do about that, unless they decide to drop their protectionist posture, get out of the courtrooms, and actually try to outcompete these rivals, by setting up superior services of their own.

Patel's decision was a preliminary injunction, and the Napster case is still set to go to trial. Napster's attorney David Boies claims it's unlikely, but don't be surprised if the parties announce an out-of-court settlement soon—with Napster transformed, in essence, into the labels' own entry in the file-trading world. But don't be surprised either if the record companies persist in trying to wipe the upstart company away.

Above all, don't be surprised next week when online file-sharing is still as popular as ever, regardless of what happens in the Napster case.