Napster: A Surprise in the Works?

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Napster's Shawn Fanning at a press conference about his music-swap service

Judge Marilyn H. Patel is set to bring the gavel — and the curtain — down on Napster Friday as the online music-swapping service and its major-label pursuers get together in her courtroom for one last dance.

But the melody could linger awhile. Having had her first stop-the-music order from last July — which gave Napster just 48 hours to strip its site of all avenues of "vicarious copyright infringement" — sent back for minor revisions by an appeals court, Patel may be looking for a more lasting solution this time around.

There'll be Friday's hearings, in which Napster and Big Music go over their cases one more time. Patel may issue her revised injunction directly from the bench, and it's widely expected to be nasty, brutish and short for the Napsterians. Then, assuming Patel rules as expected, the music companies must present Napster with a list of all the songs they want removed — that could take a couple of days. And Patel herself has scheduled a mediation session between the two sides, set for Wednesday.

A publicity stunt?

Anybody else think Napster just might have a March surprise planned? The site has already announced plans to transform itself into a pay-for-play service in July. Yet in the months since it scored a big cash investment from erstwhile litigant BMG (courtesy of parent Bertelsmann) it's been mummer than mum about how the project is actually progressing.

Last month's billion-dollar lowball/trial balloon to the record labels was more publicity stunt than settlement offer, designed to keep the site in the headlines and the users flocking to the service to get in a few more downloads before the free music stops. Now the site is up to 64 million registered users — about a fourth of the U.S. population, to put it in perspective. And Napster knows that not too many of them will be sticking around for the strictly legal New Artist Program.

So this week would be the time to offer up the pay service, before those users float away like partygoers when the beer runs out. The deadbeats and moochers, of course, will leave anyway, and there are plenty of alternatives (albeit not so user-friendly) out there. But a sizable portion of those 64 million really read Playboy for the articles — er, use Napster for the selection and convenience — and will stick around because deep down, they'll feel better if they kick in a few bucks for the privilege of access to the world's largest record store.

Better now than never

BMG has already voted with its checkbook; the other four major labels may see this as the last best time to join in, now that Napster is at its peak of popularity and staring at the business end of a judge's gavel. Once those users scatter, they won't be back — but they won't be back in record stores either.

If Napster has its technological act together — and after changing the music business forever, how hard could charging for it be? — now's the time to raise the curtain.