Since its inception Napster Inc. has had a rough go at creating an Internet business. On one hand the firm has its friends, people who say music deserves a new distribution medium, if not complete freedom from corporate conniving. On the other, its opponents argue Napster is a thieving, underhanded enterprise bent on breaking the established rules of play in the music industry.
On Feb. 12, a U.S. court of appeals essentially upheld a lower court injunction against the company. Although the appeals judges disagreed with one aspect of the lower court decision, Napster could go down for the count.
So where does online file sharing stand in this legal and social enigma Napster and its enemies have created? We asked around.
Mark Erickson is president of August Nelson Inc., a musicians' collective in San Francisco. He says we should scrutinize the appeals court decision for a clue: this is hardly a decision at all.
"It's funny. The decision points out the duplicity of this argument. On the face of it Napster won, but the appeals court said, 'Write this stuff in and you can shut them down.' No one has made the tough call yet."
Nevertheless, even Napster calls this decision a loss. In a statement the firm's CEO Hank Barry says, "Under this decision Napster could be shut down -- even before a trial on the merits... we believe, contrary to the court's ruling ... that Napster users are not copyright infringers."
Barry's diction points to an argument David Jones would like to bring to the fore. Jones is the president of Electronic Frontier Canada (EFC), a non-profit tech-minded group.
"They're not infringing copyright", he said of Napster. "They're facilitating copyright infringement."
The point is Jones figures Napster is barely the culprit. The firm's foes should find a way to sue those who infringe their copyrights -- rather than vilify the technology that allows them to do so.
"They should go after the people who are ultimately responsible", Jones said. "Recording companies went after Napster because it was the easiest target."
But would recording companies seek out and sue their bread and butter? Napster users are known to be big music fans.
"The music industry probably knows it would be a public relations nightmare", Jones said.
(And maybe not. Word has it the police in Belgium have been cracking down on known copyright infringers. Reportedly the police have carried out three raids at the homes of MP3 collectors -- more raids are said to be on the way.)
U.S. Senator Orrin Hatch seems to have a similar sense of unjustified attack in Napster's court proceedings. Even as the author of the Digital Millennium Copyright Act of 2000, Hatch wrote in an open letter to the president of the United States, "I have been troubled by the possible practical problems that may arise from this decision."
Hatch explains Napster is perhaps the record industry's best hope for online distribution. It's popular and it's central. Napster is not a pure peer-to-peer system. Connections make their way from peer to peer through the company's servers.
"I fear that this consumer demand will be filled by Napster clones, particularly ones like Gnutella or Freenet, which have no central server, and no central business office with which to negotiate a marketplace licensing arrangement."
"Such a development would further undermine the position of copyright law online, and the position of artists in the new digital world that the Internet is developing."
But Jones pegs Hatch's fear as simplistic.
"This is the 17-year-old hacker approach. 'Well, everyone is doing it anyway...'"
The law stands, Jones said. As a result most Napster users break the rules, no matter how high-pitched their screams of "fair use" and justice for artists. Still, this observer notes an unusual attitude to the law in Napster's case.
"It illustrates society's view of the music industry and the nature of copyright", he said. So many Napster fans -- more than 50 million -- can't be wrong. "Maybe we as a society don't agree with copyright law."
On the other hand, "a lot of people say Napster is guilty not of the crime, but of creating this situation themselves". Those central servers indicate Napster's true intentions: not to free music from the industry, but to make money.
But they might also serve as Napster's downfall. "That makes them a target. Logistically they screwed up. For Internet freedom fighters, this is the wrong model."
Erickson from August Nelson imagines, eventually "the record companies need to play ball". Follow Bertelsmann AG's lead and partner with Napster. Consider a subscription model and quit complaining.
In fact, this could very well be the poisoned pill record companies currently seek.
"Once Napster introduces a paid subscription, those 60 million members will dwindle", Erickson said. And like Hatch, Erickson says today's Napster fan would be tomorrow's Guntella user.
If, as this observer said, "the RIAA would like Napster to disappear", here's one way to do it.
Monthly subscriptions won't necessarily work for Napster, Erickson said. Users might sign up for a month, download everything they need and disappear into the ether. "It's like a subscription for socks." Once you have them, why maintain the monthly fee?
No one can say where Napster is headed. Even the firm's reps can't say the future is all roses. But if history guides us, perhaps a retrospective look at Napster's story will help us understand where the company is going: