title: Squeezing a balloon

by: Scott Bradner

As I write this (on March 4th) Napster is trying to stay oblivion by adding a filter to their server to render invisible the names of songs that the recording industry does not want freely shared. Napster is doing this in response to an appeals court ruling that they have been knowingly involved in an activity that violated copyright protections on tens or hundreds of thousands of songs. But in spite of the high profile of this case it is unlikely that the death or survival of Napster will have much effect on the future of music sharing on the Internet.

One of the most predictable of the effects of the long running Perils of Napster series has been the redoubling of the many efforts to develop alternative file sharing mechanisms. In particular, mechanisms which do not share what has tuned out, from legal and practical points of view, to be a key weakness in the design of Napster: centralized servers. Napster is able to add the filename filtering capability because they use a central server to collect and display the names of the files that their users want to share. This architectural feature figured prominently in the appeals court opinion.

Napster tried to use a previous copyright infringement case, the 1984 case between Sony and Universal Studios over the legality of VCRs to justify their service. They claimed that Napster had, in the words of the US Supreme Court decision in that case, "substantial non-infringing uses" in that many artists were happy to let their songs be distributed by Napster. But in the current case the appeals court said that the Sony criteria did not apply because, unlike Sony shipping VCRs to customers and not knowing what the customer then did with the VCR, Napster had directed knowledge of what was going on since they ran the server listing the names of the copyrighted songs.

This reasoning may offer some legal protection to the major Napster alternatives such as Gnutella, BearShare, LimeWire and ToadNode. (Reachable at the obvious www.name.com web sites.) The architecture of these systems is distributed with no central server that would have lists of songs on it.

But even if that legal logic were faulty it might not make much difference in the immediate future. Napster alternatives have been given a big boost by Napster's legal problems. Lots of programmers from around the world have been working to make the alternatives more stable and easier to use. At this point, even if Napster survives, the alternatives will prosper. The recording industry is trying to squeeze a balloon, thinking it will pop, when instead the balloon will expand where the attackers will least expect it.

As a writer, I am quite worried about copyright protections, but using the blunt legal hammers of old will not lead the way to resolving the copyright issues of tomorrow.

disclaimer: Some of Harvard's neighbors think its a self-inflating balloon - in any case the above is my own opinion.