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Napster: Popular Program Raises Devilish Issues
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A segmented copyright violation process

Fanning did this in a way that cleverly pokes and pries at the conceptual weaknesses of current copyright law. A schematic, simplified view of Napster shows how:

  • A user downloads and installs the Napster client or one of the competing clients.
  • The user registers their computer with a Napster server, probably one run by Napster but possibly run by somebody else. The registration makes a part of the user's hard disk visible to other Napster users on the server. By default, the upload and download areas are the same, so everything a user downloads immediately becomes visible and available for re-download by anyone else.

  • A user can search for MP3s on other computers. Only the names of MP3 files are visible. Neither the Napster server nor those who make content available make any representation as to copyright status of the MP3s.
  • Napster members can communicate with each other using Napster's chat service. In principle, if a downloading user had any questions about the copyright status of files another user made available, they could just ask via chat.
  • The Napster server carries the registration information and caches file name information, but the exchanged content is never on the Napster server.

So who broke the law? The person downloading the song may know that the song is copyrighted, but must they assume this in all cases? The person making the song available would know the song is copyrighted if they ripped it from a CD. But if they themselves downloaded the song, must they assume that it is copyrighted? Napster is an application, a name space, and a search engine. If each of those things is legal individually, under what circumstances is the collection illegal?

A violation of the law

The courts will have to decide if the law was broken. Napster's terms of use require users to agree not to make available nor download copyrighted material. But if Napster is clean, the music industry is left without any deep pockets to sue, since the "harm" from any single Napster user isn't going to be enough to be worth suing over.

In the absence of other information, what rights position are we to assume regarding content we come into contact with on the Net: the most restrictive rights position possible by any law of any nation, the most permissive such position, or something else? By accident or design, Napster is a powerful vehicle with which to ask this question.

There are no technical barriers to using the Napster approach with any digital data, although there are practical limits for content that must be trusted to be used. Some people see in Napster's devilish logo the coming of the antichrist; others the revolution that will smash the power of greedy record companies. In any case Napster can't be undone with a mere lawsuit. Already, several organizations have set up their own Napster servers, and the whole Napster system would be recreated if the RIAA somehow manages to bomb Napster out of existence. Napster's reply: "For chrissakes, we're still in beta."


Some of the following sites offer software for download. Security issues with Napster clients are not well-researched, but there are known security problems. Furthermore, Napster represents a legally contentious area, so that operators of Napster servers, and perhaps even users of Napster clients, may have the opportunity to engage in activity that may expose them to legal liability. So be careful out there.

Erik Nilsson is president of Insilicos, a life sciences company. A serial entrepreneur, he lives in Seattle with his family.

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