Moglen, Eben, The Nation
The recording industry has been celebrating the supposed defeat of Napster. The Court of Appeals for the Ninth Circuit has affirmed the grant of a preliminary injunction that may well have the effect of closing the service down completely and ending the commercial existence of Napster's parent (that is, unless the record companies agree to an implausible deal Napster has proposed). But despite appearances, what has happened, far from being a victory, is the beginning of the industry's end. Even for those who have no particular stake in the sharing of music on the web, there's value in understanding why the "victory" over Napster is actually a profound and irreversible calamity for the record companies. What is now happening to music will soon be happening to many other forms of "content" in the information society. The Napster case has much to teach us about the collapse of publishers generally, and about the liberative possibilities of the decay of the cultural oligopolies that dominated the second half of the twentieth century.
The shuttering of Napster will not achieve the music industry's goals because the technology of music-sharing no longer requires the centralized registry of music offered for sharing among the network's listeners that Napster provided. Freely available software called OpenNap allows any computer in the world to perform the task of facilitating sharing; it is already widely used. Napster itself--as it kept pointing out to increasingly unsympathetic courts--maintained no inventory of music: It simply allowed listeners to find out what other listeners were offering to share. Almost all the various sharing programs in existence can switch from official Napster to other sharing facilitators with a single click. And when they move, the music moves with them. Now, in the publicity barrage surrounding the decision, 60 million Napster users will find out about OpenNap, which cannot be sued or prohibited because, as free software, no one controls its distribution and any lawsuits would have to be brought against all its users worldwide. Suddenly, instead of a problem posed by one commercial entity that can be closed down or acquired, the industry will be facing the same technical threat, with no one to sue but its own customers. No business can survive by suing or harassing its own market.
The music industry (by which we mean the five companies that supply about 90 percent of the world's popular music) is dying not because of Napster but because of an underlying economic truth. In the world of digital products that can be copied and moved at no cost, traditional distribution structures, which depend on the ownership of the content or of the right to distribute, are fatally inefficient. As John Guare's famous play has drummed into all our minds, everyone in society is divided from everyone else by six degrees of separation. The most efficient distribution system in the world is to let everyone give music to whoever they know would like it. When music has passed through six hands under the current distribution system, it hasn't even reached the store. …