by Robert Menta 7/27/00
It's ten o'clock Wednesday evening and I am on Napster downloading a song long out of print. The tune is The Wind by Nolan Strong and the Diablo's, a song I have been searching for since I first read about it in Dave Marsh's book The Heart of Rock and Soul - The 1001 greatest Singles Ever made.
I have tried to grab this song on Napster at least a dozen times before with no luck. It doesn't exist on record as far as I can tell and all I could do was hope some collector of old wax was also tech friendly and on Napster some time when I was.
I just can't help but feel the irony that I should finally locate this near impossible to find record the day the Federal District Court in San Francisco announced it was shutting Napster down.
At the close of this afternoon's hearing, U.S. District Judge Marilyn Hall Patel told the founders of the seven month old company that it had "created a monster" and issued an injunction to close many of the key operations of the company.
"Napster is enjoined from copying or assisting or enabling or contributing to the copy or duplication of all copyrighted songs and musical compostions of which the plaintiffs hold rights," judge Patel ordered.
The ruling was shocking in its swiftness, most expected the company to be allowed to operate until its trial later this year. Judge Patel also declined to stay her own injunction, which means Napster's attorneys won't have time to seek an emergency stay from the U.S. Court of Appeals.
Judge Patel also ordered the RIAA to post a $5 million bond to compensate Napster for lost business should Napster eventually prevail in the case.
Attorneys for the recording industry praised the decision.
"Now Napster understands that they need the authorization of copyright owners to engage in their business. We hope they will work with the record companies to devise novel ways to use their technology for legitimate purposes with permission," said Cary Sherman, general counsel for the RIAA.
Critical of the decision, Napster attorney David Boies protested to judge Patel. "By getting an injunction that requires us to block an unidentified set of songs, it makes it impossible for us to comply with the injunction without removing the main components of our service".
''That's their problem" replied the judge. "Napster wrote the software, it's up to them to write software that will remove from users the ability to copy copyrighted material".
Despite the strong words from the judge, the fight is not over yet. Since Napster does not earn any income, there is none to lose while it lay dormant waiting for trial. Arguably they are saving money though it means losing most of its staff in the interim.
But months are decades on the Internet and you have to admit the outlook seems bleak. Still, what Napster has spawned will not die. In fact, it will probably grow. Gnutella, Freenet - Napster users are expected to flock to these software packages, products that do not have a central server and while they can be ruled illegal, little can be done to stop them. There are also the thousands of web sites and MP3 search engines that traded files before Napster came on the scene.
The irony is that this ruling may cause a consumer backlash against the major labels. Already one web site, boycott-riaa.com, is calling for music fans to postpone their CD purchases during the month of August. While this boycott was announced before the Napster ruling, one has to think judge Patel's words will feed its endeavor.
Still, consumers will continue to buy CD's even if the August boycott is a success. Jupiter communications confirmed this with its findings that Napster encouraged, not discouraged, CD sales. In that respect, it may be the most powerful promotional tool of music since radio.
I wonder what would happen to CD sales if all radio went to a talk only format.
Napster is still up and running as I write this. It may not be when you read this. The company is allowed to continue operation until midnight Friday Pacific time. After that, you'll have to look elsewhere.