David meets Goliath

The Napster tangle grows more intricate. The 8220;music-swapping8221; Internet service, which lets members 8220;swap8221; music for free, was first directed by a US federal judge to stop acting as a conduit for the piracy of copyrighted music by Friday night. Now Napster has obtained a stay against this order in a federal appeals court. The case is making waves in the uncharted waters of Internet regulation. Napster was taken to court by the US recording industry for violating their copyright. Now granted a stay, the company can continue this service while the trial proceeds. The case is causing such excitement because it has become a trial of strength between a nimble-footed Internet David and the entrenched Goliath of traditional corporate interests. In theory, debate has been underway for some years about the impossibility 8212; and the undesirability? 8212; of regulating the boundaryless Net in the way that conventional brick and mortar businesses have been. This case puts flesh on it. The verdict will have hugeimplications for both the freedom of the Net and of the potential for the free growth of information technology. This, Napster argues, will be hurt if the company is restrained.

Indeed it will. The instinct is to say that anything that fetters the freedom of the Net is bad. If Napster gets a rap on the knuckles, other firms may be discouraged from exploring the full use of information technology that benefit consumers. The argument is also made that copyright laws, and all so-called intellectual property protection, are a device of entrenched corporate interests to prevent others from innovating and keeping costs to consumers high. Hmm. There is much that is true here, but is easy to get carried away. Corporate interests do have an unhealthy hold in the world8217;s most developed economy, but there must be a good reason that intellectual property protection is strongest there. It is this: for a business to have the incentive to invest and innovate, it must have the assurance that its innovation will have the protection of the law. The consumer is himself the long-term loser if such protection is missing, because with its profits not assured, industry will not invest and innovate inproducts and services. It is possible to exaggerate such protection, and in America this is the case. But if what Napster does is not music piracy, how to react to the work of an author which is put out on the Net by somebody else, refusing him the fruits of his creativity and work?

It is not for nothing that Napster8217;s defence appears to consist of a series of indefensible, even ridiculous, arguments such as that it has a First Amendment constitutionally assured free speech right to share somebody8217;s else8217;s music with others! The company says its members buy more music CDs than non-members. This is to refute the recording industry8217;s argument that Napster8217;s activities affect their sales. But Napster8217;s members are music lovers in the first place. The question to ask is whether or not they would buy still more CDs but for the 8220;swapping8221; facility. It would be a fool who argued that the Net should be regulated like conventional businesses. This is not possible for a medium that naturally defies control. But what constitutes a violation in real life does so in virtual life too.