The Technology Of Copyright Infringement.

I watched with bemusement recently as a California judge ordered the music swapping site Napster to cease operations, pending the outcome of the RIAA's lawsuit. I find the music industry's high moral posturing and lofty rhetoric about intellectual property disingenuous: they're much more interested in preserving their control of the distribution of music, as well as the insanely high price of CDs. But Napster's arguments are equally ridiculous: 20 million users are not simply swapping songs one-for-one; there's clearly some copyright infringement going on, whether Napster wants to admit it or not.

As a service that makes the swapping of copyrighted material effortless, Napster clearly must share some of the blame for the misuse of intellectual property. The company was simply making money off the exchange of copyrighted music, equally as distasteful as the RIAA's bogus claims. But eliminating so-called peer-to-peer networks like Napster won't solve the problem, and isn't feasible anyway. After all, any user with the technical knowledge can set up a PC as an FTP server and make his personal files--be they stories, spreadsheets, or MP3 tracks--available to anyone with the site address. Usenet sites that exist solely for the swapping of copyrighted movies and software (so-called warez sites) have existed for ten years with nary a peep from the establishment. Further, what's to stop the millions of users who already swap MP3s and other copyrighted material via email? Nothing. Napster may make the process easier, but it certainly didn't invent it.

The music industry is clearly afraid of MP3s and rightly so--although a recent Jupiter Communications study indicates that MP3s actually promote, not impede, CD sales. Since it's a practical impossibility to add digital copyright protection to the existing library of songs, it seems to me that the real burden of copyright protection is with the creators of MP3 encoding software. It is this software which facilitates the copying and distribution of copyrighted material. If encoding software were to add copy protection to each song it encodes--perhaps allowing it to be played a certain number of times before expiring--this would go a long way toward controlling the current system of uncontrolled copying and distribution.

Of course, clever and/or disreputable developers could create MP3 encoders which did not include this copyright mechanism, or could create a hack for ones that did. But at least the most widely used programs would include this protection (Microsoft's new player already goes a long way in this direction). Alternatively, the music companies could create a subscription-based site that would provide access to their libraries online, with pricing based on usage.

Whatever the outcome, Napster or no Napster, the music industry (and, with broadband, soon the motion picture industry) is facing big changes in its business model. Established computer giants like Intel are already hard at work building on the peer-to-peer networking model, and we'll see more and more mini Napsters as PTP technologies mature. Twenty years ago, compact discs started the digital revolution. It's time for the recording industry to finally face the music.