No Matter Napster’s Fate, the Software Is Out There

The nation’s five largest record conglomerates are giddy with anticipation this morning, believing that a federal judge will pull the plug on Napster, the controversial Internet Web site that enables millions of fans to swap and copy pirated music.

Though a court ruling could drive the San Mateo, Calif.-based company out of business, it won’t, however, stop computer users from gaining access to hundreds of thousands of illegal music files listed in Napster’s central directory.

Indeed, the names and locations of those music files have already been duplicated and stored on a network of computers worldwide. Thanks to a community of programmers who are members of a loose-knit project called Open Source Napster Server, or OpenNap, sources say a new service is set to take over the moment Napster is shut down.

“It’s impossible to kill this software, and considering that OpenNap is already out there, it’s pointless to try,” said Bruce Forest, a piracy expert at consulting firm Viant Technologies. “Not only is the toothpaste out of the tube, the tube has been pounded flat and thrown into the trash. No matter what the record companies try to do, there is no way to ever get the toothpaste back in the tube.”

Napster was sued for copyright infringement last year in U.S. District Court by the Recording Industry Assn. of America, the trade group that represents the nation’s biggest record companies. Napster has also become the target of separate copyright infringement suits by the National Music Publishers Assn. and recording acts Metallica and Dr. Dre.

At today’s hearing, a judge will rule whether Napster has violated copyright law and could grant the industry’s request for a preliminary injunction against the firm. Such a move could shut down Napster until the matter is resolved in court. An estimated 20 million people have downloaded Napster’s free proprietary software, which enables users to access each other’s computers in search of digital music files. The software acts as a means for users to find each other and exchange music, but does not store copies of the audio files on its own corporate computer system.

Technology experts say that, even if Napster loses in court, fans of its service will continue to happily swap pirated songs, thanks to OpenNap and a bounty of other Napster-inspired copycats that flourish on the Web.

OpenNap, which has no affiliation with Napster, is a grass-roots effort by about 100 music fans, sources say, who have copied the bulk of Napster’s central directory onto an informal network of personal computers. Napster’s directory includes the names and locations of computers where millions of bootleg music files are stored.

OpenNap can be accessed by downloading from the Web a free program called Napigator, which polls computer servers and enables fans to continue sharing files. So far, the music giants have been unable to come up with a practical alternative to innovative file-swapping technologies such as Napster, Freenet and Gnutella.

Instead, the music industry has pursued a piecemeal legal strategy, spending most of its energy on lawsuits battling Napster, MP3.com, Scour and other purported digital pirates. The flaw in that strategy is obvious to many record executives who privately acknowledge that there is no practical way to enforce any anti-theft rulings they may win.

“All of this litigious stuff is a giant waste of time and money,” Forest said. “The only ones who will be hurt by a legal ruling in this case are the employees of Napster. It won’t stop the technology and it won’t stop Napster fans from stealing songs. The industry would be much better served trying to figure out a way to reach the 20 million Napster users who love music. But that just doesn’t seem to be happening.”

Savvy Net users have been unfazed by the industry’s efforts so far and are unlikely to be deterred whatever the outcome of today’s hearing.

“If the injunction gets slapped on Napster, no one is going to care,” said Robert Kaye, lead programmer behind FreeAmp, an online project to develop a free digital music player.