For millions of Napster users, today could be the
day the music dies. At least that's one option for U.S. District Judge
Marilyn Hall Patel who will hold a hearing in San Francisco at 10:00 AM
(PT) to consider the music file sharing service's fate.
Patel, last July, issued
an injunction that would have shut Napster down had the company not won a
last minute temporary reprieve from the 9th District Federal
Court of Appeals. The court
let Napster continue to do business as usual until it could rule on
the case. Unfortunately for
Napster, the appeals court ruled that Patel’s decision, though
“overbroad” was nevertheless basically on track.
The three-member panel affirmed the district
court's conclusion that “plaintiffs have demonstrated a likelihood of
success on the merits of the contributory copyright claim.” The panel
sent the case back to Patel so that she could issue a revised ruling
that could come as early as this morning.
Ultimately, Napster and the record industry will duke it out in a full
trial. Today’s hearing is to determine whether Patel will issue another
temporary injunction that could curtail the Napster service until the case
is resolved.
Napster is under legal
attack from four of the five major music companies. It reached a
settlement with BMG but the other major players refuse to dance with the
upstart file sharing service.
There is no question that Napster is
aiding and abetting copyright violators. Let’s be honest. Anyone who
downloads a song without permission from the copyright holder is,
essentially, stealing the music. Napster
attorney, David Boise, argued that such downloading is covered under the
“fair use” clause of the copyright law, but the judges didn’t buy
it.
But Napster isn’t just about getting music for
free. It’s also about giving people the ability to get the music they
want, when they want it and in the form they want it in.
The record industry’s idea of music distribution involves getting
people to drive to a store to pay nearly $20 for a dozen or so songs on a
plastic disc that costs about 10 cents to reproduce.
But Napster users can get the songs they want, when they want them,
without having to buy an entire album.
At the risk of admitting that I’m a criminal, I
have tell you that I’ve used Napster and that I love it.
I don’t just love it just because it’s free. I love it because
it’s convenient. Sometimes
I’m in the mood to hear a piece of music and it’s great to be able to
grab it off the net and listen to it right then and there.
Personally, I’d be happy to pay a reasonable monthly fee for the
privilege of legally being able to download music and I believe that
millions of other people would also be willing to pay such a fee.
Besides, that’s the only way Napster can
survive. In addition to being able to pay royalties, a subscription
service would give Napster the revenue it needs to pay its employees,
reward its investors and stay in business. Right now, Napster has no
revenue so unless it can come with a way to “monetize” the service, it
will go the way of other dot com financial failures even if
they weren’t under any legal pressures.
I have little doubt that,
sooner or later, the courts are going to rule against Napster unless the
case is settled out of court. But
the real losers in this battle aren’t Napster’s founders, employees
and investors -- they’ll
bounce back. The losers will be the millions of fans who have found a
better way to get their music, the artists who are getting greater
exposure than ever before and the music industry that is shutting the door
on a service that could become the best friend it ever had.
Links
Dan
Bricklin's Log on Napster
CBS
News coverage
News.com
coverage
Napster
Was Gambling All the Way (LA Times)
Press
Clippings (from Napster's site)
