Music for Nothing - music on the Internet

Reason, Oct, 2000 by Jesse Walker

Morally, this is strong stuff. Legally, it's a bit more iffy.

The record industry appeared to win a major victory on July 26, when Judge Marilyn Patel granted a preliminary injunction ordering Napster to stop the trading until the issue was settled at trial. She also remarked that the RIAA had "a strong likelihood of success on the merits of the case," heaping special scorn on the defendant's interpretation of the Audio Home Recording Act. "It's irrelevant," she explained. "It doesn't apply to computers or hard drives. And Napster isn't an audio recording device."

Two days later, some unexpected news woke the plaintiffs from their champagne hangovers: An appeals court had stayed the injunction, arguing that the suit raises legal questions that have not yet been reviewed by the courts. The two-judge panel will either reverse or uphold the ruling in mid-September. If it's reversed, Judge Patel may well reconsider her initial reaction to Napster's legal arguments.

Beyond Napster

And if the injunction is upheld? Then little will change. Digital file sharing is here to stay, whether or not Napster prevails in court. As other programmers follow in Shawn Fanning's footsteps, software with even more radical implications has appeared, bypassing both legal and moral arguments about intellectual property rights.

Napster may irritate the music industry, but at least it's a sitting target: It has an owner that can be sued, and it relies on a set of servers that can be shut down. Neither drawback afflicts Gnutella, a rival program created by Justin Frankel and Tom Pepper, the same people responsible for the popular MP3 player WinAmp. With Gnutella, every client is a server. There are no central stations through which file--swappers must pass; anyone can get any file--not just music--from anyone else, anonymously. And thanks to an unusual and still somewhat mysterious set of events, the program has no owner to sue.

Frankel and Pepper work for America Online. In March, when they announced what they were developing, AOL pulled the plug in less than a day, calling Gnutella "an unauthorized freelance project." There's been a lot of speculation as to what actually happened behind the scenes. AOL might have been genuinely unaware of what its programmers were cooking up; or it might have dumped Gnutella when it realized the program could provoke a Napster-style lawsuit; or it might have decided to dump it after its merger with Time Warner, a company with lots of copyrights to protect. Whatever happened, AOL's decision to cut the program free didn't suppress it: The source code was soon posted on the Net, and a network of programmers has been working to improve it ever since. (Anyone who'd like to can download the results from gnutella.wego.com.)

Gnutella isn't a perfect program either. "With no notion of whom to trust, a network will break down once it gets large enough," comments David Weekly, a recent Stanford graduate (he got his bachelor's degree in June) who created one of the Net's first MP3 jukeboxes. "Give Gnutella another six to 12 months, and it will have killed itself," he argues. "Not merely from the bandwidth concerns, but mainly from the fact that 0.1 percent of the Gnutella population might run a spam, and this would be enough to bring it down." (Already, a program called ShareZilla is on the market. If it performs the way it's supposed to, it'll attach the name of any Gnutella request to a spammer's file. Thus, a search for a Tupac Shakur bootleg might turn up an ad for an online casino instead.)