Taps for Napster?

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The issues that will be slugged out in federal district court in San Francisco this week sound a little too pop culture to be all that serious. How many music CDs are students buying these days in a record store outside the Syracuse University campus? How do Chuck D and Courtney Love want to see their music distributed? What does Metallica think about fans' making bootleg recordings of its concerts?

But don't be fooled. This legal face-off between the music industry and Napster may turn out to be one of the great trials of the digital age. Earlier this year the Microsoft antitrust case spelled out the rules for how high-tech companies can and can't compete with one another. The Napster case may make an equally bold statement about what intellectual property rights will exist in the new economy. If the ruling goes the industry's way, as many expect, it could bring an end to the brief era in which all sorts of music were readily available for free download on the Internet. It could, conceivably, mean the end of Napster.

Napster is, of course, the wildly popular file-sharing service whose 20 million users have downloaded some half a billion songs--most of them copyrighted, all of them free. To the music-industry plaintiffs in this week's suit--including Warner Records, which, like this magazine, is a unit of Time Warner--services like Napster are simply high-tech piracy. The industry is worried that in the future, only a few CDs will be sold; everyone else will download from the Net. In this suit, the Recording Industry Association of America and 18 record labels are asking Judge Marilyn Hall Patel to hold that Napster has engaged in music piracy. And order it to desist. And assess damages of up to $100,000 per downloaded song.

Napster, which was developed by 19-year-old Shawn Fanning in 1999, lost a key early ruling in the case. It had tried to argue that it was a "mere conduit" for the songs exchanged over it. Just as a phone company is not liable for a threatening phone call made on its lines, Napster argued that it shouldn't be responsible for piracy its users engaged in. But Judge Patel rejected that claim. Napster responded with a bold move of its own. It hired star litigator David Boies--fresh from his victory in the Microsoft antitrust case--to represent it.

Boies, not surprisingly, thinks Napster can and should win the case. He begins on an almost philosophical note: he complains that the entertainment industry has a knee-jerk instinct to try to stand in the way of technological progress. It's something the music industry has been accused of since 1908, when it went to the Supreme Court to argue, unsuccessfully, that its copyrights were being violated by player-piano rolls. More recently, in 1984, the movie studios went to the high court in an unsuccessful attempt to block Sony from selling VCRs. There's a pattern here, Napster's defenders say: copyright holders have always resisted new technology and then--as with the movie studios and videotapes--they end up making even more money as a result of it.