Napster hears its swan song

Courtney Crawford, a Clemson University freshman, was looking at the Napster.com Web site yesterday in the South Carolina campus’ library when moments later, an appeals court in San Francisco ruled against the company. Associated Press

Although Napster officials said they would keep operating while they fight on "in the courts and in Congress," the decision could spell the end of a service — at least as it currently operates — that has shaken the foundations of the recording industry.

Ruling in favor of the music industry, a three-judge 9th U.S. Circuit Court of Appeals panel found that "Napster has knowledge, both actual and constructive, of direct infringement" of copyrights. The industry says nearly 90 percent of the music traded via Napster’s servers is pirated.

The judges sent the case back to trial judge Marilyn Hall Patel, asking her to more narrowly focus her July injunction ordering Napster to shut down. They said the recording industry "would likely prevail" in the suit, a landmark in the dawning, uncertain age of digital entertainment distribution.

Napster officials said they would seek a hearing before the entire appeals court in San Francisco, and then before the U.S. Supreme Court, if necessary. "Napster is not shut down," the company said in a statement, "but under this decision it could be. We are very disappointed."

Links Napigator Musiccity.com Espra Gnutella Freenet

Napster now is counting for survival on its plan — announced in October with German music conglomerate Bertelsmann AG — to introduce a subscription-based service, perhaps by the end of summer. But it remains unclear if such a service can survive with a field of Napster clones such as Gnutella, BearShare, Filetopia, and iMesh already up and running.

Napster’s fate notwithstanding, the song-swapping technology it popularized is here to stay. Programmers have developed variations that won’t be so easy for the recording industry to stop.

Want "The Real Slim Shady"? Launch Napigator. "Jail House Rock"? Just type the name into Gnutella. A Bach cello suite? Just a few clicks away on BearShare.

Though more difficult to use than Napster, alternative file-sharing software has staying power because its decentralized technology empowers anyone with a computer to make songs available to millions of users.

The profusion of alternatives underscores how difficult it will be for record labels and artists to eradicate music piracy.

Some people suggest that it’s current copyright law — not the digital distribution the Internet promotes — that should change.

"The fundamental problem is that copyright pretends that information is property," said Ian Clarke, the developer of the Freenet platform, which can be used to swap all manner of files — music, video, whatever.

How Napster works: Napster was created by former Northeastern University student Shawn Fanning in 1999 as he tried to find a way to share music online with a friend in Virginia from his dorm room in Boston. The software allows anyone with a computer connected to the Internet to download free copies of music converted into the MP3 format, a popular digital compression technology. The program creates a directory of songs available on the hard drives of other Napster users, then creates a computer-to-computer link via the Internet to transfer the chosen song or songs. Millions have created digitized music collections by sharing MP3 files listed on the Redwood City, Calif.-based company’s servers. At any given time, thousands of people are logged into the system, making hundreds of thousands of songs — many of them copyrighted — available for easy download. The Napster site has been popular on college campuses. At least 100 have banned it because students’ downloads were clogging up the schools’ computer networks with MP3 transfers.

"The Internet is the most effective communications technology we’ve ever had," he said. "It’s inevitable that it’s going to make it difficult to enforce copyright. I don’t think that is ever going to change."

In the nearly two years since Napster’s creation, dozens of other programs have emerged to rival the top Internet file-swapping service.

Some have taken pages from Napster’s programming book. All have closely watched its court battles.

Napster was the first so-called "killer application" to take advantage of a networking structure known as peer-to-peer, which enables computers to receive and serve files.

The idea of peer-to-peer is as old as the Internet itself, but desktop PCs were almost never used to distribute data until the dawn of Napster.

Napster changed that. In 10 minutes, a home computer connected to the Internet can make MP3 files — digital copies of songs — available to anyone with a similar setup. Other programs made it possible to trade more than just songs.

Napster, however, is not pure peer-to-peer. It relies on a central index server, which acts as a traffic cop, directing requests for songs to other users’ hard drives.

The easiest-to-use alternatives rely on software that work like Napster’s servers but can be set up on any home PC with a cable modem or digital subscriber line.

These could pop up anywhere in the world — even outside the jurisdiction of U.S. courts.

"I think we could see a renegade version of Napster show up, be it in Antigua or Tijuana," said Phil Leigh, a digital music analyst at Raymond James and Associates.

Anyone with Napigator installed can see a list of dozens of such servers located around the world. Click on a server, and the familiar Napster program launches, listing thousands of songs.

Frustrated Napster fans also can turn to sites like MusicCity.com, which uses FileShare, a freely distributed software that has much of the same functionality. Like Napster, it uses a central index server.

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