Napster's Spawn

File-sharing copycats keep free music alive on the Net. The Big Five labels still call it theft.

For all the success the record industry had bludgeoning Napster into compliance, it may have created more problems than it solved. That's because even as Napster has faded into Internet history, a phalanx of successors has marched on the scene. Already they're garnering the same popularity Napster once enjoyed, using technologies that made Napster so attractive while avoiding features that made it so legally vulnerable.

"There's a very good analogy that it's an evolutionary process," says Eric Scheirer, an analyst who follows on-line music for Forrester Research in Cambridge, Massachusetts. "Napster had a particular kind of weakness in its architecture. By killing off the nets like those which are vulnerable to lawsuits, it allows the other networks that aren't as vulnerable a chance to succeed and grow. It's almost an explicitly Darwinian process."

All these programs use peer-to-peer networks, essentially ad hoc collections of Internet users who interact through small programs that let them search for and trade files stored on each other's computer hard drives. These days, those files tend to be songs -- of every conceivable genre and in staggering amounts.

Napster could be sued so easily because its central "server" computers kept track of all the files traded on its network. Because Napster knew what songs were being traded, the courts ruled, it had an obligation to block the pirated ones and a legal liability to the record industry for the billions of songs it already had helped users pirate. Napster's peer-to-peer successors don't have that centralized listing of songs, and their creators say that if their systems are being used for piracy, they have no way of knowing or stopping it -- and thus aren't legally vulnerable.

"The Gnutella network is not policeable," says Jonathan Levinson, chairman of Petapeer Holdings, the Las Vegas company behind Gnutella, an increasingly popular program that lets people swap files on the Gnutella network. "It's like running Bill Gates' Internet Explorer. You can do whatever you want with it."

Gnutella and most other Napster successors can trade more than just music, whether it's home movies of the kids or reports from work. Because they can be used for more than just ripping off the record industry, they have what lawyers call substantial non-infringing uses. Again, their creators say, that makes them less vulnerable legally.

And with Napster neutered, these networks are booming. A recent report from digital entertainment news site Webnoize says about three billion songs were traded through the new networks in August, exceeding Napster's February peak of 2.79 billion.

"We are part of one of the biggest networks in history," says Gnutella's Levinson. "The world has voted already with Napster. People want to stay at home and get their content. Sooner or later, the rights holders will get the idea. This is the future, and this is inevitable."

More than a billion of those songs traded in August were on the FastTrack network, which Forrester says is growing at a staggering 60 percent per month, with as many as 600,000 simultaneous users. FastTrack's creator, the Dutch company Consumer Empowerment BV, released the KaZaA program so users can access its network, and licensed the technology to Music City Networks, whose Morpheus program also taps into FastTrack. Another network, Audio Galaxy, is nearly as busy as FastTrack, while the older Gnutella network is close behind.

Many of these programs are easier to use than Napster, too, with such capabilities as auto-resume, which restarts a download if the person on the other end temporarily logs off, and the ability to download parts of a song from several sites at once, to speed the laborious process.

"That opportunity [for the record companies] to kick our ass will keep getting smaller and smaller as the clients' [front-end programs] keep improving," says Levinson.

The record companies aren't exactly rolling over on all this, though. The Recording Industry Association of America (RIAA), the lobbying arm of the Big Five labels, is suing Aimster, which can piggyback on AOL Instant Messenger as well as Consumer Empowerment and Music City.

"At the end of the day, they look like Napster, they smell like Napster, and from a user's perspective, they taste like Napster," says Matt Oppenheim, the RIAA's senior vice president for business and legal affairs. "Are they architected differently? Sure. Does that mean they don't know what's going on? C'mon. Everyone knows."

Oppenheim says that just because the companies built their programs so that they can't easily detect and stop piracy, they and their users don't get a free ride.

"Sure they get more sophisticated," Oppenheim says. "Does that mean it's theft to any lesser extent? No. Theft is theft. The issue is not whether they're responsible for what they're doing. The issue is whether we're going to be able to figure out what they're doing and pursue them."

Webnoize director of research Lee Black says the new companies face "a sort of double-edged sword" by building their technology the way they have. "Because of the architecture they've set up, they're proving themselves guilty of trying to circumvent the law," Black says. "I think it comes down to the legal interpretation of knowledge and control. There is knowledge that [piracy] can be done. But whether they have control of it is another thing. [The programs do] have legitimate uses, and they can't control how people use it. You need a judge to do a ruling."

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