Uninformed judgement day

Well, it looks like Napster Inc.’s days are numbered and what a missed opportunity that will be . . . not only for the folks at Napster (who I’m sure won’t be too pleased), but also for the Recording Industry Association of America (RIAA).

You see, the RIAA has missed the essential nature of the Internet that Gilmore pointed out: The ‘net routes around censorship as if it were damage.

So, is the attack on Napster censorship? According to our old friends Merriam Webster, censorship means: “the institution, system or practice of censoring; the actions or practices of censors; especially, censorial control exercised repressively,” while “censor” (as a transitive verb) means “to examine in order to suppress or delete anything considered objectionable.”

If you don’t think that killing Napster would be a form of censorship, then I guess you think that Napster was breaking the law. So, the question is, was Napster acting illegally?

Here we enter very murky territory: On July 26, U.S. District Court Judge Marilyn Patel issued an injunction that Napster must block “copying or assisting or enabling or contributing to the copy or duplication of all copyrighted songs and musical compositions of which the plaintiffs hold rights.”

Patel wasn’t shutting down Napster as such, but the impossibility of Napster being able to comply with the injunction is tantamount to closing their doors. Napster, of course, appealed and on July 28 managed to get the 9 th U.S. Circuit Court of Appeals to stall the injunction until Aug. 18.

If Napster was, as Patel was led to believe by the RIAA’s attorney, cheating the music companies out of their royalties, then why didn’t Patel talk about damages? Either Napster is guilty of copyright infringement or it isn’t. If it is, it should be liable for a settlement of a gazillion dollars.

But by her decision to stop Napster from distributing copyrighted material, it would seem that Patel is simply censoring Napster rather than pursuing real copyright infringement.

What I found hilarious about the case is Patel had rather obviously not done her homework. In the course of presenting their arguments, Napster’s attorneys pointed out that there were other ways to find and download music.

They cited chat rooms and Gnutella (a system similar to Napster but one that doesn’t rely on centralized servers). Patel responded with, “but you have to pay,” showing herself to be ludicrously uninformed. As Charles Dickens wrote in “Oliver Twist”: “The law is a ass-a idiot.”

So, what we have here is what I can only interpret as censorship. It is being applied simply because Napster is an easy target for the RIAA compared with the millions of people who use Napster.

But going back to my original point, if the RIAA had been smart, they would have figured out how to work with Napster rather than censor it out of existence. Napster hasn’t broken any laws, the end users-the music fans-have. The RIAA’s problem is that if they succeed and Napster becomes history, the likes of Gnutella will get far greater market leverage to route around the damage of censorship and be much harder to control.

The RIAA needs to realize that there is no way to stop the music-sharing phenomenon and they need to rethink the product they are selling. The genie is definitively out of the bottle.

Gibbs is a contributing editor at Network World (US). He is at nwcolumn@gibbs.com.