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Napster ‘sharing’ has limits

Company closely guards own assets like name, software

SHARE Napster ‘sharing’ has limits

If there's one thing that Napster seems to believe in, it's sharing. The fast-growing service lets users obtain free MP3 files of popular music, something the recording industry calls "copyright infringement" but which Napster describes as fans "sharing" their favorite songs over the Internet.

A federal judge takes up the "sharing" issue in hearings scheduled to begin Wednesday regarding the Recording Industry Association of America's request for a temporary injunction that would all but put Napster out of business pending a trial over whether the company, based in San Mateo, Calif., is violating copyright law.

When Hank Barry, Napster Inc.'s president, testified before Congress earlier this month, he mentioned sharing seven times in his opening statement. Among Barry's sharing-friendly remarks: "Napster . . . is a return to the original information-sharing approach of the Internet."

Napster even has a theme song — in the form of the winning entry in the "Why I Support Napster" songwriting contest it recently promoted — that expresses similar sentiments. Among the lyrics: "I'm fighting for freedom. Trade laws? We don't need 'em, Especially when living in the Information Age."

But while Napster is eager to help its users share music, there is one kind of sharing it won't tolerate. That's the sharing of anything that belongs to Napster itself. The company may, through its rap anthem, appear to encourage a disdain for "trade laws" where music is concerned, but it readily invokes those same laws when its own property is at stake.

Last month, when the punk-rock band the Offspring started selling T-shirts featuring the Napster logo, for example, Napster promptly sent the group a cease-and-desist order, backing off only after some Web sites commented on the apparent hypocrisy of the move.

More significantly, the company has tried repeatedly to stymie independent software developers working on Napster-compatible software and Web sites.

While these programs could benefit the millions of music fans that Napster claims are its only constituency, they might also diminish Napster's own commercial potential.

The company has refused to share technical information about its software code, has made changes to its software that have prevented other programs from working with Napster's own and has blocked computers from outside music sites from accessing Napster's database of hundreds of thousands of songs.

The fact that Napster seems to sing a different tune when its own property is involved is just one of the ways the reality of Napster is at odds with its public image. The service's management and ownership structure, for example, is quite different than many users suppose, with Napster's highly publicized teenage founder, Shawn Fanning, playing only a minor role.

Napster's Barry, a former corporate lawyer, insists there is nothing inconsistent about the company's efforts to protect its intellectual property. "We are not an open-source software company," he says. "This is not Gnutella," he adds, referring to the popular free software product that lets users exchange music files. Barry says that while Napster and the music industry disagree about the rights music owners have to put digital music files on the Internet, the company respects copyright laws and wants to find a way to compensate artists for use of their work.

The recording industry, of course, sees Napster's "sharing" as a euphemism for music piracy on a massive scale.

Arguments in the federal court hearing are set to begin Wednesday afternoon, but Judge Marilyn Hall Patel isn't expected to issue a ruling right away.

Napster's hopes of transforming its busy Web service into a source of revenue depend on its withstanding the music industry's legal assault. At the same time, however, it is taking an increasing amount of flak from those seeking access to its database or its technology. The result is a public-relations skirmish over whether Napster, which portrays itself as a champion of youth culture and the Web's freewheeling ways, applies a double standard to intellectual property, making it cavalier toward other people's, but hyperprotective of its own.

"At Napster, they jealously guard their own property, yet they complain when the music industry jealously guards its own property," says Adam Powell, chief executive of AngryCoffee, a music-oriented Web site that has had run-ins with the closely held company.

As a condition of using its software, for example, Napster demands that users agree that they won't "decompile, reverse engineer, or disassemble" the program, which precludes anyone from trying to figure out how it works.

The phrase is a standard one at big commercial-software companies such as Microsoft Corp.

What's more, Napster has had occasionally testy relations with the community of outside developers who began gravitating toward Napster as soon as the program started to catch on. They were usually interested in writing add-on software for Napster or developing versions of the company's program that worked on other computer operating systems, such as Linux.

Many of these programmers had assumed that Napster, because of the nature of the service and the public stances of young people who founded it, would be sympathetic to their efforts.

Instead, Napster told them, in effect, to get lost. "You don't know why we implemented the things we did, and (we) can't explain them to you, mainly because it's not public information, simple as that," one Napster developer said in an open letter to outside developers published in January on an online newsgroup. "We can't give you any information because Napster is not some garage organization . . . but rather an incorporated company with a development team, marketing team, bizdev team, and an executive management team. Hypothetically speaking, if I were to have a strong desire to give you all the information you needed. . . . I couldn't. I do, actually, but that is no longer relevant. It's not mine to give anymore, it's the company's."

Some outside Napster developers were surprised by the letter. "Maybe you need to lighten up," one of them wrote in response, telling Napster that its software is "just a way to pirate music, after all."

Some have tried to figure out the workings of Napster's internal protocols on their own. One of them, David Weekly, a Stanford University student, put a version of them on his personal Web site. Soon, he received an electronic message from Napster demanding that he take it down.

Another Napster fan, Chad Boyda, wrote a program called Napigator that allows Napster users to connect not only to the music databases on Napster's own computers, but also to the growing list of "Open Napster" servers that emulate Napster's music-trading service, but which are operated outside the company. Because most Napster users don't know those other computers even exist, programs such as Napigator have the potential for creating competition for Napster. (They also show how Napster-style threats to the music industry will continue even if Napster Inc. is shut down.)

Not long after Napigator was released, the company rewrote the main Napster program in a way that prevented Napigator from working properly. Napster says it is always rewriting its software and wasn't targeting Napigator.

But Boyda is skeptical. "I had to rush out a new version that got it working again," he says.

Napster also demanded that Boyda not include usage information about its servers in his software. Boyda acquiesced and, as a result, a Napigator user can get statistical information about all of the servers listed on Napigator — such as how many users are logged on and how many MP3 music files they are making available for download — except for those run by Napster .

Another issue is whether Napster really is the fan of new Internet information-sharing technologies that it says it is. In his Senate testimony, Barry tutored senators in the essentials of the "peer-to-peer" file-sharing system that is one of Napster 's technical foundations. He also reminded the Senate panel of the many examples "of new technologies struggling to survive as copyright holders argue that these new technologies will impede their ability to be compensated for copyrighted works."

Via the Associated Press