Napster and Gnutella Change the Rules in Content Protection

Continuing our wandering through the prickly world of copyright protection for digital content, from Monday.

As I said, if you think this is all about -- and only about -- high schoolers and college students downloading some cool tunes, you're way off. What's happening now in digital music downloads is a precursor to all forms of digital content becoming available, without regard to copyright issues, on the Web.

If MP3.com (MPPP Quote) was an early, interesting foray into distribution of digital content via the Web, two inevitable successors, Napster and Gnutella -- and a host of clones of both -- take the game another step down a dangerous path.

To use "the Nap," a PC owner downloads a small piece of code, and executes it on his computer. Then, he goes online, using that program, and enters a path to a file folder on his computer's hard disk that includes .MP3 music files he's willing to share with others. Napster then records on its servers this list of available files.

Then the Napster user uses the program to search for an artist, a band, or a specific cut he wants. Napster digs around in its lists of who has what, checks to see who among those who have that file available are online, and displays a list of every instance of that work now available. A couple of clicks and the file is on its way down to our intrepid music lover.

Meanwhile, of course -- and for as long as he has Napster running on his PC -- others can download his contributions to this online swap meet.

Napster is, plain and simple, a cri de coeur to forget about all this copyright nonsense. If I have it, you're welcome to it. If you have it, well, I can have it, thanks very much. Copyright? Fees to artists, songwriters, backup musicians, record companies? Naw, that's yesterday's stuff. Consider this the highest expression of the Open Source movement.

The old dot-communism joke comes to mind.

Because it looks so much like a business plan built around violating others' copyright, Napster has been thought to be pretty much uninvestable. Who wants, in the vernacular, to buy a lawsuit?

But this month, respected Silicon Valley VC shop Hummer Winblad not only put $15 million into Napster, but also provided a new, interim CEO: Hummer Winblad partner Hank Barry. Some VC firms are shaking their heads over the move; others wish they had jumped first.

Napster is already facing a suit from the trade association of record companies, the Recording Industry Association of America, alleging copyright violations. Two weeks ago, U.S. District Judge Marilyn Hall Patel threw out Napster's first line of defense -- that it's like an ISP, and has no control over what passes through its servers.

Napster's also under attack from rockers Metallica and rapper Dr. Dre, who have given the court long lists of Napster users they believe have downloaded their tunes illegally from Napster, and have demanded those users be cut off. Napster says it complied. But because those users can easily reregister with Napster under another user name -- and repeat that ploy endlessly -- delisting presumed offenders is not a very effective answer.

The other, even newer player, Gnutella, avoids what some see as Napster's self-inflicted fatal flaw: It works much like Napster does, but rather than storing users' lists of tunes available for download, instead searches in real time among connected Gnutella users for those who have the desired files, then allows the transfers to take place directly, user to user.

It's a clever way of avoiding Napster's self-set legal trap.

(By the way, Gnutella has an interesting history. Developed by programmers at America Online's (AOL Quote) Nullsoft subsidiary, Gnutella was at first seen as cute. But after a German court in April found against AOL in a copyright-violation case alleging that AOL has allowed illegal digital-music downloads, the company disavowed Gnutella. It remains, however, available in many places on the Web -- and, inevitably, has its own "portal" site.)

But the real kicker in Gnutella isn't just that it may have dodged the letter, if not the spirit, of copyright laws. It (and some Napster clones) can also handle content other than .MP3 files -- such as digitized movies, pirated from DVD discs.

While the movie business has been eager to grow the DVD market, it also has been afraid that in the process, it was providing an invaluable service for pirates: funding the expensive process of producing digital copies of the films, so that any buyer of a $15 to $30 DVD movie gets a ready-to-steal digital file. Well ... they succeeded.

DVD movie discs are protected by a relatively robust form of copy protection, the so-called DVD Content Scrambling System. But last fall, a 16-year-old Norwegian boy created DeCSS, which cracks the encryption and allows anyone with a cheap Linux-based PC and a sub-$1,000 DVD recorder to make a perfect copy. Quickly. Easily. Cheaply.

Almost overnight, downloadable copies of DeCSS popped up all over the Web.

Needless to say, the leading movie trade association, the Motion Picture Association of America, and its cohorts, the DVD Copy Control Association and the Worldwide Anti-Piracy Group, are battling DeCSS tooth and nail in the courts.

(Cynics who are inclined to observe at this point that the only winners here are likely to be the lawyers will hear no argument from me.)

Ironically, parties on both sides -- all sides -- are pinning their hopes on the new Digital Millennium Copyright Act, which became law last November. But -- bad news for the pro-copy side -- that law explicitly makes it illegal, and potentially very expensive, to produce copyright-busting devices and systems, not just to actually make illegal copies.

This swamp is clearly going to get muddier before it gets clearer.

Wednesday, I'll wrap this up with my views on what likely lies ahead.