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The Napster Decision: Where do we go from here?
Alternatives to Napster - Friends of Napster - Enemies of Napster
By Margee Fagelson
(more articles from this author)
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The more things change, the more they remain the same. The world was in a tizzy, last weekend, as they awaited the 9th Circuit's decision on the latest Napster ruling. Result? Well, the court decided that Napster is bad and that the decision Judge Patel made back in district court was basically okay, but that the language of the ruling was not clear enough to unilaterally define the parameters of Napster's infringement. Essentially, Napster will face the same fate as did, when they had to ante up. Napster will have to 'pull' – in this case, block – all works that have been brought to their attention as copyright-infringed. What does this mean? Where will we go from here?

Let's start at the late middle. When it was announced that the circuit court panel would be ruling on Napster, fans everywhere hit the network in earnest. Reports of an inability to access the servers led to the obvious conclusion that frenzied free-music fans were getting their licks in. But then Monday came, Napster was still running, and everyone went back to business as usual. Except the pundits – more on them, later. Oh yeah, and the Napster bigwigs weren't gonna take this judgement (no matter how long it might be before any action is taken) sitting down.

Napster attorney, David Boies, gave assurances: "I don't think there's a threat of an immediate shutdown," he said. "We will be pursuing further appellate review."

Now Napster's salvation may come in time to save any further action being taken against them. This summer, Bertelsmann AG will be helping Napster turn their product into a subscription-based file-sharing service. For better or for worse. But what if the new model isn't launched on time? What will that do to all the loyal Napsterites? I was a Scour fan, myself. When Scour went down, I just switched to Gnutella. Now that CenterSpan is trying to bring Scour back from the dead (albeit in some altered state), it only occurs to me, as I write this, that I could even consider going back. They lost me and I moved on. I found something else that works, why switch again? Am I representative of the general public? Probably not, since I'm even thinking about considering a new alternative.

Do we have alternatives?

Oooh yay! Pundit time. There has been lots and lots written about Napster today and Napster tomorrow. Inasmuch as there are different opinions throughout the worlds of music and technology, everyone has their own opinion. The obvious conclusion is that I am not alone in my Gnutella conversion. There are new front end user interfaces out there which are offering themselves as sort of a 'skin' to facilitate easier access to Gnutella, for the commoner. The most popular of these is BearShare. But to quote Jon Baer, open-source developer, DigitalAnywhere (the first company with an Artificial Intelligence CEO – not a bad idea, considering some of the Absence of Intelligence inherent in too many CEOs): "They should call it PornShare."

But Baer also offers a simplistic description of what these technologies do. "What Gnutella does if I don't [have] the [file], I ask someone else, etc, it follows down a chain, follows down a chain of connections each person has."

Friends of Napster (FON)

In the meanwhile, back to Napster and the industry. Pop band, The Rosenbergs, made news when they said 'No' to's offer to appear on their TV show in return for the relinquishment of all significant intellectual property and a three-month period of near indentured slavery. Their latest newsworthy event came with the pending release of their new album, MISSION:YOU. The Rosenbergs and their genius management (Adrian Molloy) as well as their new record label – DGM – have a special treat in store for their first 10,000 customers. Included with each of the first 10,000 CDs is a handy-dandy 'Napster copy' for customers to 'share' with a friend. How cool is that? How supportive? And The Rosenbergs aren't Napster's only fans, just the most creative!

Theories abound that Napster is the best, brightest and most successful viral marketing tool yet. In fact, the question has been posed, "When has a technology or product so affected the common behavior in so short a time – two years?" We've all heard stories and testimonies to Napster's marketing ability and its reign as a propeller for previously unknown bands.

John Pareles, New York Times writer: ''When Radiohead fans suddenly, en masse, discovered an Icelandic band called Sigur Ros, its album Agaetis Byrjun quickly disappeared from even the best-stocked downtown New York stores. was back-ordered. But there it was on Napster: not with the fidelity of a CD, but available. And so was a previous album, Von, and remixed versions of songs that may have been released in Iceland and live recordings that were never for sale. I'd pay for a subscription for that kind of access, but nobody's offering me one. And I'm not alone in investigating the fringes. As I was waiting for Sigur Ros to download, other Napster users were trying to grab Euphone, Shipping News and In Flames -- not exactly household names -- from my hard drive.''

Enemies of Napster

Well that's a tough list, isn't it?

The RIAA is thrilled! Other companies, trying to compete – but for a fee – are hoping that this will be their entrée. Perhaps some of the label-owned subscription offerings will flourish... Yeah right. Emusic is no FON – never has been – how could they be? Given the choice between going to Emusic and going to Napster, Napster usually wins. It's not just the cost comparison (Emusic charges, Napster does not), it's the selection. Emusic actually hosts the MP3 files they sell and therefore can only host what they are licensed to vend. Even artists and Indie labels often avoid Emusic due to their exclusivity restrictions. Why go to Emusic and risk getting nailed for also going to or anyone else, when you can go to Napster with no restrictions on the rest of your promotions? Not to mention the way Emusic themselves decided to put the legal bite on poor Napster.

Bob Kohn, Emusic: "They are already on notice for tens of thousands of files from us. We've been giving them hundreds of notices a day for the last few months."

Whatcha gonna do when they come for you?

This may be good news for all the digital rights management companies who are quickly and strongly making their presence known. Unfortunately, no one (at least publicly) has come up with a surefire security method. Carey Sherman of the RIAA has nearly endorsed Cantametrix, a digital fingerprinting company. Cantametrix's function acts primarily as a music recommendation program but by virtue of a song's individuality – or fingerprint – there is a way to actually track its travels. This sort of technology, coupled with a secure DRM program, could be the answer to the lock-down club's prayers.

Where do we go from here?

Complaints are still abounding. Several have said that shutting down Napster will cancel any chance of the big five warming anyone's heart, as well as canceling out the best way to make more revenue out of the acts they don't have time, budget, interest in promoting. Napster has been – in effect – the answer to back catalog sales rising. Nothing need ever go out of print, just down in print. Baby acts can shoot up, forgotten acts can have new life breathed into them. No label does artists development anymore, let Napster and the fans do it for you.

Whitney Broussard, Esq., Entertainment Attorney at Selverne, Mandelbaum and Mintz drew an interesting parallel, one that may even make us hopeful for the future of interesting music: "In 1950 or so, at the height of the war between ASCAP and the radio broadcasters, ASCAP threatened to sue the broadcasters for copyright infringement if the broadcasters did not pay ASCAP the monies that ASCAP demanded. Almost overnight, the broadcasters preemptively ceased playing ASCAP-controlled music and played the music that ASCAP had previously ignored - country, R&B and rock & roll.

"Funny thing was, people liked the "other" music just fine, in fact much more than the saccharine pop that the industry had grown accustomed to producing. The careers of many of the prior stars and composers went into permanent decline thereafter and the new stars playing the "inferior" music became the new kings of the industry."

Should Napster somehow be forced to tailor its offerings, the music industry could well be turned upside down. And diehard 'new music' fans of Napster would still have a place to go. Imagine a world where the most-listened to, publicized and compensated music comes NOT from Columbia, Epic, Atlantic, Sire, Capitol, Virgin, Interscope, but from All Indie, AWAL, Indie Grrl and Very Juicy Records. It may not sound like Lauryn Hill, it may not look like Britney Spears, but it may well revolutionize popular music, again.

Whitney Broussard: "Removing all of the hit products from the most efficient music distribution system ever devised, which has a built in audience of tens of millions of passionate music fans, may have some very interesting consequences."

John Pareles again: ''If the recording companies do manage to prune their holdings from Napster, they will be giving up their chance to reach the most active music fans. Napster users are willing to track down unknown acts. They expect uncertain recording quality and put up with downloads that terminate halfway through just to hear a song that might be worthwhile? As it drives users from Napster's broader, more ungovernable file-swapping software, the recording business may wish it had quit fighting while it was behind.''


Bertelsmann -
Cantametrix -
CenterSpan -
DigitalAnywhere -
Emusic -
Gnutella - -
Napster -
NY Times -

Related MusicDish e-Journal Articles:
» Napster Takes a Blow, But Problems Still Loom for the Recording Industry (2001-02-12)
» Napster Gains Another Ally in TVT Records (2001-01-29)
» My, Have Times Changed! BMG and Napster in a Partnership? (2000-10-31)
» Wanted: A Survival Plan for the Music Industry - Napster and the Consequences - 'This is the end, my only friend, the end' (2001-01-29)
» Imagine All the People (Sharing All the Music) - A&M Records v. Napster (2000-11-08)
» Story of a Revolution: Napster & the Music Industry (2000-09-06)

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» Rosen Statement From Press Conference On 9th Circuit Decision
» Statement By Jay Berman On Today's Napster Decision
» Valenti Statement On Napster Ruling
» Napster Service Continues Rapid Growth, Reports Jupiter Media Metrix

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