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Circular Firing Squad?

By Scott Bradner

Metallica and Recording Industry Association of America (RIAA) do have a point. It is hard to not see at least some intellectual property issues with the service that Napster provides but throwing lawyers at Napster may only fatten the lawyer's wallets without having any lasting impact.

Napster (, for those who have been aggressively not following the news, is a new little company that developed some software that allows its users to find and retrieve music files over the Internet. Once a file has been found and retrieved it, along with any other similar files on the user's disk are then made available for other Napster users to find and download. The RIAA ( and Metallica ( don't think much of this advance in user convenience. The RIAA sued Napster for "contributory and vicarious copyright infringement" and Metallica sued Napster for "copyright infringement and alleged racketeering activities" and tossed in some Universities because they had not blocked access to the Napster server. Lawyers who are not involved in the case seem to be split on merits of the suits. Napster is not actually storing or downloading any illegal copies of music files but their server does list sites where presumably illegal copies can be downloaded from and provides links to those sites.

But I expect that Metallica and the RIAA are just wasting lawyer time, although there seems to be plenty of that around. There is something about technology that does not like to be told "no." There are already a number of competitors for Napster one of which has no controlling server to target or block. Gnutella ( has developed software that operates in a distributed way. They seem to be popular with over 650,000 hits since April 10. All a user needs is the IP address of someone else running gnutella and a dynamic web of connections between users is created. There is no way for an organization to block access to this web of users since connecting to any one of them gets you to the whole web.

As a writer I fully understand the importance of intellectual property and do not minimize the impact of these technologies on the intellectual property rights of the artists whose songs are getting ripped off. But it looks to me that it will not be possible to stop this type of distribution from happening no matter how many lawyers get thrown at the problem. It may be a bit glib to say this but maybe it is time for the recording industry to aggressively explore alternate business models. To blindly continue to try to apply laws designed to protect plastic in a digital era instead of understanding that world has changed is to shoot themselves. To paraphrase Sherlock Holmes, when you eliminate the impossible you have to go with what is left.

disclaimer: Harvard is not known for discouraging the use of the products of its Law School so the above must be my opinion.