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'Net Insider  

Squeezing a balloon

By Scott Bradner
Network World, 03/12/01            

As I write this (March 4), Napster is trying to stay oblivion by adding a filter to its server to render invisible the names of songs that the recording industry does not want freely shared. Napster is responding to an appeals court ruling that it has been knowingly involved in an activity that violated copyright protections on tens of thousands, or hundreds of thousands, of songs. But in spite of the high profile of this case, it is unlikely that the death or survival of Napster will have much effect on the future of music-sharing on the Internet.

One of the most predictable effects of the long-running "Perils of Napster" series has been the redoubling of the many efforts to develop alternative file-sharing mechanisms. In particular, these mechanisms do not share what has turned out, from legal and practical points of view, to be a key weakness in the design of Napster: centralized servers. Napster is able to add the file name filtering capability because it uses a central server to collect and display names of the files its users want to share.

Napster tried to use a previous copyright infringement case, the 1984 case between Sony and Universal Studios over the legality of VCRs, to justify its service. Napster claimed it had, in the words of the U.S. Supreme Court decision in that previous case, "substantial noninfringing uses" in that many artists were happy to let their songs be distributed by Napster.

But in the current case, the appeals court said the Sony criteria did not apply because unlike Sony shipping VCRs to customers and not knowing what customers did with them, Napster had direct knowledge of what was going on because it ran the server listing the names of the copyrighted songs.

This reasoning may offer some legal protection to major Napster alternatives such as Gnutella, BearShare, LimeWire and ToadNode. The architecture of these systems is distributed, with no central servers holding lists of songs.

But even if that legal logic were faulty, it might not make much difference in the immediate future. Napster alternatives have been given a big boost by Napster's legal problems. Lots of programmers from around the world have been working to make the alternatives more stable and easier to use.

At this point, even if Napster survives, the alternatives will prosper. The recording industry is trying to squeeze a balloon thinking it will pop, when instead the balloon will expand where the attackers least expect it.

As a writer, I am quite worried about copyright protections. But using the blunt legal hammers of old will not lead the way to resolving the copyright issues of tomorrow.

Disclaimer: Some of Harvard's neighbors think it's a self-inflating balloon. In any case, the above is my own opinion.

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