Injunction won't stop the music

By PETER SINCLAIR

So free-music internet firm Napster got stomped by a dinosaur. That doesn't mean evolution stops.

Information Technology commentators seem to have been writing about nothing but Napster for weeks, which is a measure of its significance.

The right to life, liberty and the pursuit of music has emerged as the first serious showdown between the past and the future - in the sense that it is the first case to passionately involve millions of ordinary users.

Late last week, on the day the music almost died, those users began a mass migration to other and less vulnerable alternatives - to Gnutella, whose servers collapsed briefly under the impact, and Ian Clarke's anarchic Free Network Project, which doesn't rely on central servers as data clearing-houses.

FreeNet alone added 10,000 subscribers in the two days following US Judge Marilyn Hall Patel's abortive injunction.

At the same time, fresh clones are springing up - MediaShare from MP3Machine, described as "the best Napster copycat on the web," Naphoria, and OpenNap, a service which will rely on about 70 decentralised, independent servers located in various jurisdictions.

Pressure also increased on the movie industry, threatened by the same seismic shift as the Recording Industry Association of America with the release over the weekend of DivX, a new video compression technology devised by a French film buff and a German computer hacker, which uses a combination of Microsoft's MPEG-4 technology and MP3 to compress video files for speedy download to a PC and subsequent copying to CD-Rom.

The potential of these technologies is too great for them to be suppressed.

For example, a firm called myCIO is beta-testing Rumor, a peer-to-peer technology that can create information flows for rapid virus control.

A legal friend of mine dined with Judge Alex Kozinski, of the 9th Circuit Court of Appeals, on the evening before he granted Napster the stay of execution of Judge Patel's injunction (the decision granting the stay is very brief, but you'll find it at www.law.auckland.ac.nz/itlaw/ITNews.htm).

His feeling, like most informed US opinion, is that the record companies have failed to examine the result of their actions.

If they shut Napster down they have no one with whom to negotiate; open-source movements such as Gnutella have no management team, facilities or place of business.

A suggestion that Napster moves offshore, like OpenNap, leads to an interesting legal position for its developers.

Would they then be enjoined from doing something in the US (like writing software) which is legitimate offshore and to effect a purpose that is lawful in another country?

To take Judge Patel's ruling to its logical conclusion would probably involve banning the web entirely.

One thing is certain: whatever the result of Napster's hearing this month, the Recording Industry Association and the forces of Big Music, cannot win.

As a number of commentators have noted, "the invention of the internal combustion engine ruined the business model of the horse and buggy." Get over it.

The association and its cohorts will survive and continue to make a good living. It just won't be a mega-living any more.