It appears that U.S. District Judge Marilyn Hall Patel, of the 9th Circuit Court of Appeals will soon issue an injunction against Napster, the on-line music distribution company. This ruling is the (apparent) culmination of a copyright infringement suit brought by the music industry.

On the merits, it seems clear that a majority of Napster users were in fact downloading and uploading copyrighted music. Napster's servers were functioning as a sort of clearing house for the transmission of all sorts of music, the bulk of which was copyrighted. The music industry's case has merit insofar as copyright infringement goes. There is no doubt that users of Napster were and are looking for free music that they would otherwise have to pay for.

But the question is, what will the music industry really gain, by gaining their injunction. Napster may have to start charging money, or it may have to go out of business, or more likely it will simply reorganize under the bankruptcy law. And it is unlikely to survive without dealing in what amounts to free music.

But while the law may grant some relief to the current plaintiffs in this matter, it will most likely not grant any real economic relief, at least not in the long run. Napster was and is vulnerable only because it maintained and distributed music, supplied the proprietary software, a search engine, and the means of establishing a connection between Napster users' computers. Yet the mere stopping of Napster will not stop the free distribution of music throughout the Internet.

MP3-type music files (the preferred choice of internet music users) are freely available through the means of electronic bulletin boards. As is free software which allows basically the same kind of service that Napster provides, but without the use of a central server. Free music is also available via the Alt. Newsgroups which do not rely on so much on central servers. News servers will not be required to avoid carrying MP3 files, because of this lawsuit. So, in fact, the music industry's infringement suit will net them virtually nothing in the long run. Music files will continue to merrily zoom about cyber space, lawsuit or no.

The industry will most likely fail in its efforts to stop the exchange of copyrighted performances. It will most likely fail because it is ignoring history. Before the invention of electrical and mechanical methods of recording music, all performances of artistic works were live. Musicians and artists had to rely on paying customers for live performances. Sheet music, it is true, was copyrighted, but the copyright of musical performances came only with the modern technologies of recording. With this in mind, it appears that the music industry's infringement suit, while having legal merit, is in reality a form of cyber Ludditism.

The industry is losing control over its means of support and like the Luddites of the 19th Century who attempted to stop progress and hold onto their jobs by destroying machinery, the cyber Luddites attempt the same thing by destroying the new recording and distribution technology (or at least its application) by use of the copyright laws. These new Luddites can no more succeed in their quest, than did Ned Ludd and his followers in the early 19th Century.

The industry itself has to face up to the fact that the copyright enforcement of electronically reproduced music is very largely impossible. Technology has simply surpassed the old expectations inherent in the copyright concept. Perhaps copyright itself is an idea whose time has come and gone. In any event, it is unlikely that the free distribution of music will end any time soon. And it is just likely that artists and musicians of the future will have to rely on live performances to earn their living.

If so, the injunction coming out of the 9th Circuit Court of Appeals is pretty much a useless and costly waste of time. The music industry will be granted breathing room, but that is all. Technology will march on, lawsuit or no.

The music industry must adopt to new technology, or die.

Punditwalla--