After Napster

Anything that good had to be illegal. Two weeks ago, an appeals court in San Francisco found that "Napster users do not engage in fair use of the copyrighted materials." Most legal experts agree that within a matter of weeks an injunction will silence the Internet's premier all-you-can-eat audio smorgasbord. But as 64 million digital music fans bowed to the inevitable by feverishly downloading millions of free tracks, Napster executives kept promising that the service will rise again. This summer, a legal, paid subscription service will take its place.

The question remains if this judicially housebroken version of Napster will have much to offer consumers, given that four out of the five major record labels (the majors control an astounding 92 percent of the copyrights for recorded music) are loath to license their content. Napster's alliance with German media giant Bertelsmann (which owns the fifth major, BMG) has done little to change the intransigence of the others. Even last week's offer to pay a minimum of $1 billion over five years for the licenses seems to have fallen on deaf ears.

Is this the end of the Internet's most successful attempt at digital distribution? Will music fans have to rely on the CD for the next couple of years, until the industry sorts things out? For the answers, if you want to rise above the current conventional wisdom, listen to Eben Moglen . He predicts that not only will Napster go down, but it will take the rest of the music industry with it.

A professor of law and legal history at Columbia University who once clerked for Thurgood Marshall, Moglen is the general counsel for the Free Software Foundation. He's currently working on a book, slated for publication in 2002, about the music industry's attempts to gain control over the Internet. He contends that the majors' jubilation over their recent win is, to say the least, premature.

Moglen points out that even if Napster manages to cut those essential license deals, the service will be offline for at least four months, leaving the field open for second-generation services like [Gnutella] and [Freenet](http://freenet.sourceforge.net/)?and they pose an even greater threat to recording companies' control of the distribution of music.

"Freenet, Gnutella and the Freenap services do not keep centralized directories," he explains, "and so there is no central repository that can be sued or subpoenaed. And the idea that you can stop a computer program that nobody owns from being anywhere on the planet where anybody wants it is just hopeless. So programs that are not designed to be part of a commercial eyeball-selling environment?and therefore don't have to take everybody to a central site where their eyeball can be sold?are inherently easier to legally defend. Not because the law is substantively different, but because there is no way for the record companies to sue the people they need to sue. Ultimately, they would have to sue their customers, and that is politically unfeasible."

Ironically, the rise of these decentralized services opens a new Pandora's box for the entertainment conglomerates. Consumers will find almost immediately that not only can they satisfy their free music jones at the likes of Gnutella, etc., but they can also gain access to downloads of software and movies, which further challenges the industry's bottom line. The coming ascendancy of the decentralized systems is also extremely bad news for Napster's promised paid subscription service; the new Napster will have to confront the reality, already familiar to the labels and e-entrepreneurs, that it is impossible to compete with free.

Napster can take some comfort in the fact that up until now the other services lacked its idiot-proof point-and-click interface. And it can hope that the bells and whistles of its new subscription service?guaranteed file storage, virus control, etc.?will be attractive enough to get consumers to pay for it. But because the decentralized systems are based on free software?software that is distributed in such a way that anybody who uses it has both the right and capacity to improve and redistribute it?it is almost certain that more than a few college sophomores are currently working on the next big thing.

"In a world of peer-to-peer sharing," Moglen says, "when any particular user moves, the inventory moves too. So the inventory is going to leave [Napster] in droves, and the more that Napster tries to raise its subscription revenue, the more in fact they will push customers away via a process that any capitalist in the world can understand."

So if Napster is almost history, where does that leave the major labels? According to Moglen, they may also be riding into the sunset. He contends that the very nature of digital product contains the seeds of the industry's extinction. When your products are bit-streams, the need for a middleman ceases to exist. Will the labels not still be needed as filters of product and arbiters of quality?

"That is the content owners' mantra for the 21st century," says Moglen. "In the end, as they lose control over the content itself, they will claim to have a monopoly over wisdom with respect to the content. And that is bullshit. The primary evaluative means by which a society goes about deciding what is good is by populist means. What really happens in mass society is that people tell one another what movies to see and what music to listen to. The labels try to emulate this through focus groups that measure every 15 seconds whether people think a record is good. So even as they maintain that their real role in society is doing our selecting for us, the little man behind the curtain is not the Wizard of Oz, he is actually a focus group."

The professor is equally dismissive of the contention that only through the industry can an artist hope to reach a mass audience. "In a world of increasing numbers of connected people, coming up with an audience of sustainable size is not that hard?if what you are thinking about is quitting that day job, not making $10 million a record."

An unabashed utopian, Moglen has high hopes that artists will embrace what he calls a model of "anarchist production," which is characterized by an absence of property rights. He claims that it undermines the artificial scarcity created by the monopoly of copyright holders, and almost guarantees that all those unknown talents can stop waiting tables and sweeping floors. He predicts that in the future when you download a track, a box will appear on your screen with the names of the performer, writer, arranger, etc.; if you choose, you can make a donation through a system of micropayments to any or all of those responsible for the composition. Moglen admits this might be overestimating the attention span and goodwill of all but the most zealous fans, but believes that, given music's continuing metamorphosis into audio wallpaper, it is worth the effort.

"It may seem a fundamentally elitist or too-inside way of thinking about this," he concedes. "And yet one of the ways that social conventions for listening might change is that people will listen more closely as they figure out if they want pay for something and decide what is going on in a song that really matters to them. After all, people listen to street musicians better. They actually have to pay attention for a second to figure out if they want to give a quarter or not. Some sense of responsibility is stirred. There is a feeling that I should throw a quarter to the musicians I like."