The Napster Debate Goes on and On

CNN had another one of those hideous cybermoments yesterday, posting a reporter in front of a computer to await Judge Marilyn Hall Patel’s ruling on the Napster injunction.

To make a long story short, the industry won. (I preferred watching the CNBC reporter shivering in front of the courthouse myself.) Judge Patel ordered the preliminary injunction modified, but the basic song list was enjoined, and Napster had previously said it would shut down if it lost.

This case, however, doesn’t end the matter. Systems like BearShare, which don’t use a central server, are still around. If you close BearShare, there are still millions of copies of the software. There are other countries where such services could be based, and there are dozens of other Gnutella clones out there. Shutting down Gnutella-like services will be about as easy as shutting down file transfer protocol (FTP).

Still, lawyers like to think they have the power. When DeCSS (decryption of CSS [Content Scrambling System]) was enjoined last year, so were links to it, and even a recording of the code was pulled from As noted in October, under the Digital Millennium Copyright Act, “It is now possible to be IMPRISONED simply for WRITING a program like DeCSS.” This could also become the case for programs like Gnutella.

According to our fearless leader, Andy Bourland, all this is just bully. “I think it’s out-and-out theft on a wholesale basis,” he wrote of Napster. “The difference between someone sharing a ClickZ article and a downloaded song is that the ClickZ article was free in the first place. The downloaded song was a paid-for product. I think Napsterization is negatively impacting CD sales.”

Critics will note that CD sales actually rose a half-billion dollars last year, but let’s move on. Andy and I both agree this should be a case for the marketplace. “They need to think through their business model to adapt to the new realities,” wrote our fearless leader. “They can’t sue it away.”

But if you can sue it away, is there any incentive to change? If the law can prevent the development of new business models, why change them?

Actually, Andy’s own note provides an answer. “I, for one, never liked having to buy an entire CD with 2 good songs and 10 bad ones just to own the 2 good ones.” Neither have millions of others. That, I submit, is why teenagers — who don’t worry about business models because they’re playing with their parents’ money — now set our cultural tastes.

The movie industry, which won the DeCSS case, is actually in worse trouble than the recording industry. Hundreds of movie theaters are closing. Most major chains are in financial trouble. According to a January 29th press release, movies on VCR and DVD are still a $20 billion industry, even though sales rose just two percent last year despite huge growth in the new DVD format.

Waiting for Andy and me to open our wallets is a very crude way to plot an industry turnaround. Technology works faster, much faster. I’d prefer an economic recovery on Internet time to one on legal time, but we may have no choice.

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