Will Napster (or a Clone) Download to a Caribbean Island?

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Reporters call their offices after the Napster decision in San Francisco

"Vicarious copyright infringement," as a business model, just went down the tubes. In the United States, at least.

The 9th U.S. Circuit Court of Appeals left little doubt Wednesday that Napster as we know it is dead, ruling that U.S. District Judge Marilyn Hall Patel's injunction against the service would stand, with a little retooling. In a 58-page ruling, the three-judge panel said that Napster must stop trading in copyrighted material and may be held liable for "vicarious copyright infringement." Napster must also prevent users from gaining access to copyrighted content through its lists of songs archived by the service's users.

Which was pretty much the whole point of the service — log on, get free music that other people paid for (and for which artists would otherwise get royalties for), and salve your conscience with the justification that you're changing the music business from without. Otherwise known as Sticking It To The Man.

Napster's legal leg — explicated in court by none other than David Boies, who is now officially on a losing streak — was that it was only giving away software; what mischievous users did with the software was not Napster's problem. It's Napster's problem now, thanks to the appeals court, and as soon as the retooled injunction comes through — and the case finishes its inevitable further travels through the courts — Napster will likely have to shut its doors. (Fearing just such a development, Napster users downloaded some 250 million songs over the weekend.)

Get your free music overseas?

Not that the free-music revolution is over just yet. Gnutella, iMesh, Aimster and FreeNet are all Napster-style music-trading facilitators, and unaffected by the ruling. Some believe that subtle differences in method will help them beat litigation, although the term "vicarious copyright infringement" tends to sum up the reason for, say, Gnutella's existence just as well as Napster's. But until those services get fat enough on Napster's users to catch the eye of the Big Five music labels (Sony, Warner, BMG, EMI and Universal) and their lawyers, there is such a thing as a free lunch.

And then, of course, the services could always move overseas, to Tijuana or Antigua or Vancouver or the Cayman islands — if the servers are offshore, so's the defendant, and the long arm of U.S. copyright law won't do the labels or their artists much good. It's a tactic taken by many a gambling site — and the U.S. government is still struggling with how to deal with the situation.

But the Napsters of the world weren't designed to make the Shawn Fannings of the world rich — more to Stick It To The Man, and change the music business from without. And it's already working. Back in October, while the appeals process was still underway, Napster and Big Fiver Bertelsmann cut a deal to turn the renegade into a profit-making (and officially sanctioned) music-selling arm of said Man, with funding by Bertelsmann and mechanics by Napster.

Good-bye Napster, hello Son of Napster

Before long, music on the Web will be available for song-by-song or by-subscription purchase — and considerably cheaper, since the Big Five will be able to save money on packaging, marketing and distribution. Music labels will turn a profit, and artists will get royalties, and people will have to cough up a couple of bucks or turn on the radio.

Until then, the free-tune grab is still on, as long as you stay one step ahead of the lawyers. After Mp3.com, Napster, after Napster, Gnutella, after Gnutella, iMesh, after iMesh, tijuanatunes.com.

The Man may be on the right side of this issue — as long as artists keep depending on Big Business to find them a paying audience, Big Business deserves a cut of the loot — but that doesn't make it any less fun to watch them play corporate Whack-a-Mole with the Internet rebels.

That they keep whacking them, one at a time — and then cutting deals with them — means free lunches, even in the Internet Economy, are still few and far between.