You'd think that after several years of doing battle with the digital music community, the Recording Industry Association of America would have figured out how the Internet works. But on Tuesday, the RIAA filed a motion for a preliminary injunction against Napster, in an attempt to shut down the digital music file service immediately -- even before a ruling in the RIAA's copyright infringement suit against Napster.
If the RIAA thinks turning off Napster will slam the door on file-sharing once and for all, it's got another think coming.
The RIAA is arguing that the judge should pull the plug on Napster right away, because "the music industry will likely succeed [in its case against Napster] on their claims of contributory and vicarious copyright infringement and because Napster is causing irreparable harm to plaintiffs and the entire music industry."
The group cited a Field Research Corporation survey of some 2,555 Napster users, which it says shows that "essentially every single Napster user sampled was engaged in some copyright infringement while using the Napster service and [of] the overwhelming majority of songs actually copied and downloaded on Napster, over 87 percent (and likely much more) are infringing."
And the motion it filed included juicy supporting declarations from Napster competitors, like Michael Robertson of MP3.com and Robert Kohn of EMusic.com, both of whom posited that the revenue-free Napster is doing harm to their more "legitimate" downloadable music businesses.
Robertson's participation was especially galling; it has been but a few days since MP3.com itself was an RIAA pariah. Just last week MP3.com settled two lawsuits brought against it by major record labels and you have to hope that Robertson's declaration wasn't discussed during the settlement talks.
Besides, Robertson should well understand that the record industry needs to work with its digital brethren if it is to grow the market for music online. But if Napster is shuttered for the interim of the lawsuit -- an act which threatens to put the start-up out of business, even if it eventually wins its lawsuit -- there is little chance that Napster will ever find a way to work with the record labels and give those artists it is "harming" their just compensation.
It's clear at this point that file-sharing software will never disappear; already, more than a dozen Napster clones let music lovers swap tunes. If a judge grants the proposed injunction, the fans booted off Napster will probably just flock straight to Freenet or Gnutella, which are competing open-source file-swapping technologies. With no corporate backers and scores of unknown users hosting the software on their private machines, services like Gnutella will never cut deals with record labels or musicians. They will never take in subscription fees.
The RIAA, and those artists that it claims to be protecting, would be better off trying to work with Napster and set an example for the rest of the file-sharing software makers. A recent study by the digital entertainment consulting firm Webnoize indicated that nearly 58.5 percent of Napster users would happily pay a subscription fee to access the service; why isn't the RIAA taking this good news and trying to access some of that potential cash for its artists?
As Napster CEO Hank Barry put it in a press release: "Distributed information technology is the future. File-sharing technology is here to stay. It does not threaten copyright any more than any of the other technologies that have been developed in the past. The RIAA is seeking to control this technology by claiming that its only use is to infringe. Nothing could be further from the truth."
It's hard to imagine that shutting down Napster will have much of an effect on the whole culture of file-sharing. But attempting to work with Napster to develop a revenue model in which artists are compensated for their work would have a huge impact. It's a setback for artists that the RIAA won't acknowledge this.