Taps for Napster?

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As for the law, Boies starts by saying copyright does not apply to noncommercial uses like Napster. The service is free, and users don't charge one another for the music. So, he argues, it isn't piracy at all. He also notes that in the VCR case, the Supreme Court endorsed the idea of "fair use"--that if a product could be used for a legal purpose (like taping TV shows to be watched at a more convenient time), the product itself was legal. Boies says Napster also relies on fair use. In addition to copyrighted songs, it offers files from 17,000 artists who have authorized their music to be downloaded free.

The record companies respond that Napster is used overwhelmingly "to engage in music piracy, and very little else." The industry cites an internal Napster document embracing the goals of bringing about "the death of the CD" and making record stores obsolete. And it has produced a survey--whose findings are challenged by Napster--in which 22% of Napster users said they don't buy CDs anymore or buy fewer. "It doesn't require rocket science to say you are going to have a very hard time selling something if someone is giving it away," says Cary Sherman, general counsel of the Recording Industry Association of America.

Large companies aren't always good at tugging on the public's heartstrings. But artists like Hootie & the Blowfish and Alanis Morissette have joined the anti-Napster chorus. In a full-page ad that ran in newspapers nationwide, more than 60 musical groups urged that "when our music is available online our rights should be respected." Metallica and rapster Dr. Dre have filed their own lawsuits against Napster. It's not unanimous, though: Limp Bizkit, for one, is pro-Napster--and Napster is sponsoring the group's current tour.

Many legal experts are calling Napster the underdog in this week's legal face-off. In addition to Judge Patel's initial ruling in the case, the music industry was heartened by a New York federal court decision in April that MP3.com another music-sharing service, had violated music copyrights. MP3.com ended up settling with some of the record companies suing it, agreeing to pay some $100 million and to hand over licensing fees in the future. But even if the record companies defeat Napster, that will not solve the problem they created when they digitized music in the first place, making copying so easy to do. "If they were to shut it down in America, it would move to Canada or somewhere else," says Boies. "There's a reason they call it the World Wide Web--it's literally worldwide." At the same time, newer, more decentralized file-sharing systems like Gnutella and Freenet, which have no central authority in charge, are emerging. When people use those services to exchange pirated music, it will be hard to find anyone to sue.

Which is why, even as record companies and individual artists pursue their cause in courtrooms across the country, the industry is working harder than ever to develop new encryption methods like SDMI, which uses digital "watermarks" to prevent unauthorized copying. In combatting the threat posed by new technology, the music industry may find that it's not law, but technology, that saves it.