Can't Stop the Music

The Napster ruling won't kill free MP3s.

Last summer, it looked--just for a moment--like the courts were going to shut Napster down. Napster, for those of you who've been living under a Gramaphone for the last two years, is a program that lets you find digital music files on other Napster-users' computers, then download their music onto your machine. Citing copyright concerns, the record industry sued to stop this vast swap meet, much as Universal Studios tried to keep VCRs off the market two decades ago. On July 26, 2000, the music combines seemed to win: Judge Marilyn Patel issued an injunction telling Napster to stop the trading until the matter could be settled at trial.

Two days later, an appeals court stayed the injunction, declaring that the issues at stake required a closer review. But even before Napster received this reprieve, the future of online file-sharing seemed assured: Several rival programs were already in operation, some of which had no owners, no central servers, and, thus, no one who could shut them down.

Now the appeals court has rejected almost all of Napster's defenses. Unlike Patel, the higher court has not told Napster to turn itself off completely. It has, however, told Patel that she may make Napster remove unauthorized copyrighted material from its system. And it's left Napster potentially liable for a giant heap of fines, ruling that the company "knowingly encourages and assists the infringement of plaintiffs' copyrights."

Meanwhile, Napster has allied itself with the German music/media behemoth Bertelsmann, and soon intends, it says, to start charging its customers to use the system. The most visible alternative to Napster, Gnutella, is confronted with perhaps insurmountable technical problems. Another file-swapping program, the much wider-ranging Freenet, shows more promise, but it's scarcely ready for prime time. Together with the general sense of gloom that's settled over the dot-com world in the last few months, it's easy to worry that free online music will soon disappear down the same rathole that has reportedly claimed the rest of the New Economy, along with cheap and abundant electricity, the resilience of Bill Clinton, and everything else we took for granted in the heady utopian days of the late '90s.

But it won't. Honest.

Imagine the worst-case scenario. Napster, faced with millions in fines, sells itself to the big record companies, which wipe away everything that made the program popular and retain only its valuable brand name. Gnutella, Freenet, and the other open-source alternatives never get off the ground. The only official distribution points for online music are overpriced and poorly stocked. And for good measure, Congress makes it a federal crime to operate a Napster-style network: Help people trade unauthorized music files, and you'll be sentenced to five years' hard labor cleaning up Metallica's hotel rooms.

In that environment, people will still transform CD tracks into MP3 files and trade them with their friends, even if the music's been copyrighted. The same Internet fan groups that set up a tape tree whenever Pete Townsend debuts a new ditty at a charity concert in Oslo will continue to e-mail recordings of their favorite performers' music to each other as well as sending the music through the postal service. And artists who want to publish their music online for free--and aren't hampered by contracts telling them they can't--will do so in increasing numbers.

Back in the real world, where worst-case scenarios don't always come true, it seems likely that Freenet or some similar program will replace Napster as the thorn in the industry's side. The more creative members of that industry will continue to look for ways to create a Napster-like service of their own--one that, in the much-quoted words of Net guru Jim Griffin, won't be free, but will feel free to those who use it. And Congress just might make it easier, not harder, for peer-to-peer networks to thrive, if the more forward-looking legislators--on this issue, such beasts actually exist--can beat back the Recording Industry Association of America's army of lobbyists.

Napster has been injured. It may even be finished. But the revolution it represents won't be snuffed out so easily.