At midnight on Friday, Napster could very well take its last gasp — but it has been a pretty impressive run for an upstart network built almost solely on killer technology and wildfire word of mouth.
The preliminary injunction issued by U.S. District Court Judge Marilyn Hall Patel earlier this week — which for all practical purposes will shut down the music file-swapping site — does more than take the wind out of Napster’s sails. It is a dark omen of what is to come.
True, Napster will still be able to share non-copyrighted music and maintain its other ancillary services. Also, Judge Patel has made provisions for the network to recoup some of its financial losses should Napster prevail at trial.
However, by issuing the injunction, the judge has delivered a broad hint that the Recording Industry Association of America has an excellent chance of winning the case — and this is one lawsuit that will affect a whole lot more than the fate of a single company. The Napster controversy has very serious implications for determining who will be allowed to benefit — and who will not — from the best and the brightest advances in technology.
Best Argument Cut Down
The injunction cuts the knees out from under Napster’s best legal defense: that because individuals have a right to share music online, Napster is not doing anything wrong by facilitating the process. However, by issuing the shutdown order, Judge Patel seems to be voicing agreement with the RIAA’s position that Napster is advocating and encouraging music piracy.
The ruling has already sent shock waves throughout the peer-to-peer world. The well-heeled, but equally besieged Scour.com — another popular file-sharing site — issued a nervous “too early to comment” press release following the ruling.
But don’t count Napster down and completely out just yet. The company has begun to take steps toward re-inventing itself as a legitimate forum for sharing music with permission. And its market reach into the important college student demographic cannot be ignored. If Napster chooses to go legit, the company could become a powerful force in a new era of music distribution.
But the legal battle is far from over. Although the chance that Napster will prevail with its original “personal rights” argument seems slim, it is even less likely that the company will be forced to make any amends to the recording industry after all is said and done. Napster is armed with recent studies showing that the use of its service actually boosts music sales among its many fans.
Unfortunately, the Napster that will emerge from the lawsuit will not be the same. The post-trial company is likely to be a tamer, more commercialized, more sanitized operation — much more like MTV’s sickeningly slick streaming audio site than Napster’s former scrappy self.
The effect on Napster may be the least important fallout of this case, though. What is of far greater significance is its effect on ordinary people.
Judge Patel overlooked a key element of Napster’s defense — that technology alone has changed the face of personal music sharing. The existence of new technology means that instead of buying a blank tape and taking it to a friend’s house to make a copy of a CD, all a music fan has to do is go online and find a long-distance friend who will share the music over the Internet.
Billions of “old-fashined” taped copies of records and CDs have been made without any legal repercussions, and Napster has changed nothing except the technology. The intent of the listeners who copy music is the same. The final outcome is the same. Only the technology is different.
The precedent set by the Napster injunction is a dangerous one. It calls into question the future of all peer-to-peer sites and it seems to say that clever and creative technology cannot be used when it merely benefits the masses.
By taking Napster’s network out of service, Judge Patel is attempting to reverse technological advancement, but that will soon prove to be impossible. Fortunately, others will rush in to fill the void and the cycle of progress will begin anew. Innovation breeds resistance, but it is against human nature to travel backwards for long.
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