Who's leeching who?

The courts can shut Napster down, but unless the music industry gives as well as takes, it will never recapture the customers it's alienating.

Published February 15, 2001 8:30PM (EST)

The original genius of Napster was that it gave every music lover the feeling of being a philanthropist. When you fired up Napster the software assumed, unless you specifically told it otherwise, that you would take all the music files residing locally on your computer's hard drive and offer them to other Napster users across the Net -- who were, of course, in turn providing their music files to you. You were participating in a cash-free exchange that let you share your existing enthusiasms with like-minded fans and discover new ones.

This "give something back" principle has been at the heart of the culture surrounding MP3s since long before Napster was a twinkle in Shawn Fanning's eye. When Salon's Andrew Leonard started reporting on the MP3 underground three years ago, he found that users who took files without simultaneously contributing them were detested as "leechers." MP3s have always operated under a version of the golden rule: Give unto others what you'd have them give unto you.

Except that, according to the U.S. Appeals Court that ruled against Napster earlier this week, the music wasn't yours to give. What you thought was good musical fun was actually a breach of copyright law. Stop feeling good, the court said, and start obeying the law.

The Napster decision has evoked cheers in many quarters of the corporate music industry, which feels that its rights have been properly upheld, and dejection in the Napster camp, which understands that it has suffered a serious blow. But the decision has not yet shut down Napster or forced a substantial change in the service. Only when that happens -- as seems likely once a U.S. District Court defines the working outline of what Napster needs to do to comply with the law -- will we start to see the decision's real impact on the tens of millions of people who have avidly embraced Napster's era of good feeling.

Under the appeals court ruling, music companies can tell Napster which files are being traded in violation of copyright, and then Napster must police its service to prevent those files from being traded -- presumably by booting individual users. Technically and practically speaking, this is, of course, a nightmare: Booted users can simply reregister under new names. Files must be identified, most likely by name -- which means that if you deliberately misname a file you'll fly under the enforcement radar. (Look for clandestine song-name servers providing users with secret keys to renamed song lists.)

By playing legal and technical games of cat-and-mouse with many thousands of ingenious teenagers with lots of time on their hands, the copyright cops may be able to reduce the volume and convenience of Napster's musical offering. But they won't be able to eliminate it -- unless Napster itself, daunted by the technical challenge or its own gloomy business prospects, throws in the towel.

Napster has a much-ballyhooed deal with the Bertelsmann conglomerate, which, among many other things, is one of the Big Five music publishers, and some observers think that this relationship will somehow immunize Napster or give the company a way out of its predicament. The trouble is, Napster's announced for-pay service, in partnership with Bertelsmann, remains vaporware: No one knows exactly what Napster plans to offer, and there seems little likelihood of it being able to provide anything along the lines of what most users want -- reasonably priced access to a full library of all the music companies' offerings (the so-called celestial jukebox approach).

So unless Napster's executives and lawyers can engineer a rabbit-out-of-the-hat settlement with the music industry, it seems most likely to me that once the district court fine-tunes its order and Napster exhausts its appeal options, Napster will have to close its doors.

What happens then? A music-swapping software diaspora, as millions of Napster users seek out alternatives from among the many Napster clones and open-source "peer-to-peer" experiments that have been waiting for just that moment.

Many pundits, particularly those closer to the music industry, dismiss this scenario. They see the Napster era as an anomaly, a brief breakdown of the copyright norms during a moment of technological transition. They think that the general public is too dimwitted or easily discouraged for any of the more complex Napster replacements to take off. (That's what was said about the Internet back in 1994 -- "too geeky for the masses" -- but the masses seem to have managed OK.)

To be sure, the Napster alternatives do have both technical and legal vulnerabilities. But the universe of Internet software developers has a remarkable ability to innovate around obstacles. Given a little time and enough motivation, they are likely to be able to reconstruct a Napster-like service that is less vulnerable than Napster is to legal attack -- and less available for negotiation with the music industry.

The motivation, clearly, already exists. If the Napster phenomenon proves anything, it proves that the Internet public wants a universal library of immediately accessible, easily downloadable music. That Napster makes the music free is plainly an added attraction, but it's also clear that millions of people would pay for the right to keep using Napster in its current form -- if the music industry could only find a way to accept that outcome and participate in its revenue.

The courts can take Napster away, but they can't obliterate the taste for a Napster-like music exchange that millions of people have now cultivated. And while part of that hunger is simply for convenience, another part of it is for the feeling of participation, the sharing of enthusiasms, the opportunity Napster provides for pursuing obscure musical passions and stumbling upon new ones. (Since Napster lets you see what music others have on their hard drives, it's easy to find fellow travelers and follow their interests -- a fact that innovative marketers are just beginning to notice, too.)

Music companies, the court has ruled, have the legal right to sit on their copyrights and demand that the world stop changing around them. But that won't win them any friends as they try to turn Napster devotees into paying consumers: It's hard for a business to thrive when it is engaged in legal combat against its own best customers.

So it might make sense, at this pause in the legal game, for the music companies to step back and ask a question I have yet to hear from their spokespeople. The courts have told us what the record labels' rights are. But what are they going to contribute?

Napster presently serves as an astonishingly rich swap meet for out-of-print music, live recordings and other obscurities that simply can't be purchased. If the music industry succeeds in shutting down Napster, will it make any effort to provide alternative access to such material -- for free or for payment? Or will it just continue, despite the advent of the Internet and digital copying, to act as if nothing has changed from the old disc-in-a-box distribution system, with its inherent limits on how much music could be kept "in print"?

There is still an opportunity, however slim, for the recording industry to redeem itself in the eyes of its millions of customers by saying, "Yes, we want you to pay for our products, but we will give you something new and different and wonderful, because this is a new and different world." Otherwise, it could find itself regretting it ever chose to take Napster to court.

The MP3 fans of yore had a word for people who took from the system without giving anything back: leechers.

By Scott Rosenberg

Salon co-founder Scott Rosenberg is director of MediaBugs.org. He is the author of "Say Everything" and Dreaming in Code and blogs at Wordyard.com.

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