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.

The Free Software Project
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