When he considers the arguments made for Napster, James Boyle likes to look at a 1984 Supreme Court decision that ruled in favor of Sony. Boyle, an expert on cyberlaw, came to Duke this fall from the American University law school. In the Sony case, the justices ruled against movie production companies that had accused Sony-a manufacturer of home video cassette recorders-of contributing to copyright infringement. According to the majority opinion, "The sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes, or, indeed, is merely capable of substantial non-infringing uses."

"It was clear that one reason why they held this way is that we don't want the owner of the copyrights-in that case the movie companies, in this case the record companies-to be able to leverage their existing monopoly in one area into a monopoly in another area," Boyle says. "The movie companies were effectively seeking to make videotape recorders contraband, or seeking to have a monopoly control over them. Maybe that's the strongest policy argument on the side of Napster."

If Napster is guilty of contributory infringement, the path might be cleared to shutting down all peer-to-peer file sharing, or at least to giving the recording industry-the copyright holders-a lock over the technology. And to Boyle, those steps would diminish the genius of the Internet itself, its capacity to transmit information that "isn't subject to central control and isn't subject to filtering." It's risky to "outlaw technologies that can be used for lots of good purposes, just because the purpose that happens to be before the court right now is a bad one," he says. "And we have to be careful not to just pile on new monopolies onto the existing content providers.

"We've always tried to have holes in intellectual property systems. Holes are good. This is not some accident or some limited enforcement. It would be a bad thing if owners of intellectual property could control every use of their product. That would actually result in less innovation." The current case has produced a conglomeration of strange Net-fellows: The

Eagle Forum's Phyllis Schlafly and the Association of American Physicians and Surgeons were among those who submitted a pro-Napster brief to the appellate court. If the court prevents Napster from helping users find copyrighted materials, Schlafly said, companies could use that precedent to stop the dissemination of information about their products. Referring to a controversial pharmaceutical now on the market, she told National Public Radio, "I would not want to see a situation where a Ritalin could come in and say, 'We have a copyrighted product and information, and we have to shut down all the search engines that are leading people to other, contrary information.' " In the same interview, Jonathan Potter, president of the Digital Media Association, said Napster couldn't be expected to know how every consumer is using its service. That would be akin to holding the phone company liable for crimes that were planned by telephone, he reasoned.

There have long been ways of making copying cheaper and easier-whether through the Xerox machine, the audio cassette recorder, or the VCR. There are transaction costs, though, to photocopying and distributing, say, the latest Scott Turow legal thriller. Digital copies are what Boyle calls "non-rival." That is, ten people can't share a sandwich; ten people can share a song. "My use doesn't interfere with your use. You can have a version, I can have a version, they're both perfect, and there are no or very low transaction costs." At each stage of technological evolution, "the content providers, the copyright holders, have said, the sky is falling, the sky is falling," he says. "That's one of the reasons why people are a little skeptical now. About the VCR, the movie companies were just demonstrably wrong. They said, this will destroy our business. It saved their business. I'd say that content providers have 20-20 downside vision: They see perfectly the costs of every new technology, and imperfectly the opportunities."

Still, Napster might be toppled by the fair-use conventions of copyright law. That's the hope of the Motion Picture Association of America, the Songwriters Guild of America, and the American Federation of Musicians in their "friend of the court" briefs. The U.S. Copyright Office and the Justice Department also have weighed in with the recording industry.

Industry groups representing some of the biggest technology and communications companies-America Online, Sony Electronics, Yahoo!, AT&T-have filed briefs bolstering the other side of the legal argument. One of the tests of fair use is the market impact of an act of copying, Boyle says. "So if you make a photocopy of my book in order to read some portion of it at home, that has a very small effect on the market for the work in question. If you make 500,000 copies of it, that has a very large effect. Something that might be legal if individually done might be illegal when done by very large numbers of people or when facilitated by some central organization."

Boyle says that when it targets Napster in its lawsuit, the Recording Industry Association of America has a strong argument: Napster is actively facilitating mass copying, and indeed may seek to make money from the practice in the long run. The recording industry puts its concerns in stark terms: "An individual making a copy of a TV program (which she was invited to watch for free) so that she can watch it later cannot be equated with an individual redistributing a copy of a CD to millions of anonymous strangers who were not invited by the copyright owner to get it for free."

It's hard to find students who worry about their Napstering habits as a copyright violation-or as stealing. "The system was designed to be leaky; it was designed to have trading and swaps, and this is just the new site of that leakiness," says Boyle. "I would have to say, though, that occasionally I become slightly irritated by the self-righteous tone of the people who are using Napster. I accept the argument that the music industry is protecting more than just the rights of artists, who receive a vanishingly small proportion of the total profit generated. What's more, that profit goes to a tiny subset of the artists involved. Does that justify the activity of a group of people who tend to be either disproportionately well-off or college students operating on subsidized high-speed Internet connections? They say, 'We're striving to bring this new musical world into being.' Well, they're striving to get music for free."

"Most people don't understand what copyright law is all about or feel that something that is not in physical form is not 'property,' "says Fred Goldring '79, a partner in a Hollywood entertainment-law firm. Goldring's firm represents such artists as Will Smith, Boyz II Men, and Herbie Hancock. Many consumers view Napster as a way to preview music, he adds, particularly the tracks that will never get play time on the radio or MTV. In that way they can decide whether they want to invest in the (high) price of the CD. "So to many people, but not all, Napster is kind of like interactive radio or the listening booths at record stores."

Even if consumers are aware that they might be stealing, "they feel it's payback time for the record companies," he says. "They don't really factor in that the artists and songwriters are also being deprived of income." According to the Recording Industry Association of America's own figures, shipments of compact discs in the United States reached an all-time high in the first half of 2000, up 6 percent from the year-ago period to 420 million units. A marketing research firm called @plan Inc. found that 77 percent of Web surfers age eighteen to twenty-four think music swapping increases sales of CDs and cassettes. A less formal survey conducted by Element, a teen marketing site on the Web, found that younger Web users overwhelmingly support free music downloads. According to those findings, 70 percent of those who download free music don't feel guilty about it, nor do they buy less music because of it.

Statistics are suspect, though, and they're subject to infinite interpretation. Goldring cites record-company surveys showing a 4 percent drop in CD sales around college campuses, where most Napster activity is presumably centered. But such statistics don't by themselves document a Napstering trend: Internet-savvy students are likely to be buying more CDs online. Other studies purport to show that 95 percent of the music that users download from Napster they delete from their hard drives within a week. Goldring says, "It's not clear whether that is because they are burning songs onto recordable CDs or have just grown tired of listening to that particular music."

Duke's Boyle says the Internet naturally increases copying. But if record companies play it smart, they will also realize that the Internet lowers the costs of distribution practically to zero. "The music industry has been extremely slow to move in that direction. The reason is that right now it charges an extremely high premium on the sale of CDs. And what might be a good business model on the Net, where you unbundle the song from the platter-that is, the CD-is something that undercuts their other business model. The one thing copyright doesn't do is that it doesn't give you a right to continue in your current business model. And that's one of the things that the music industry, and indeed every industry, tries to leverage it into: Don't just protect us from copying, but protect us from ever having to change the way that we do things, or from new competitors who maybe would do things differently and better. And whenever copyright law is extended to do that, it's a bad thing. It's anti-competitive, it's anti-innovative, and it's anti-consumer."

Beyond providing case studies for generations of future law students, the Napster debate may serve the purpose of disrupting the record industry out of a musical status-quo. Yale Fineman, user services librarian for the Duke Music Library, says, "What Napster has done is to give the record companies a shot in the backside. They're starting to put stuff on the Web, because they realize that that is really how many people want to consume their music. And they'll make it so good and so cheap that in the end, Napster will have turned out to be a catalyst"-a catalyst, that is, for the idea that people will pay for music online. Assuming, of course, that their music comes to them in a way that's convenient for them.

Yale Fineman, Duke Music Librarian Photo: Les Todd

Fineman has launched his own project that's a blend of technology and convenience. He developed and maintains a website called DW3 Classical Music Resources; he calls itan aggregation of information, the most comprehensive collection of classical-music resources on the Web, with links to more than 2,000 sites in more than a dozen languages. The site features databases relating to every aspect of music, from music theory to record reviews; information on different kinds of music, ranging from Gregorian chant to computer music; electronic journals and newsletters, with a repertoire that stretches from Guitar and Lute Issues to taktlos, the online music magazine of Bavarian Radio; organizations and centers for scholarly research; nationally and regionally oriented pages, like the Croatian Music Information Centre and British Choirs on the Net; chronologies of thousands of musicians and composers; and homepages that cover composers from the Medieval and Renaissance periods through the late twentieth century.

The record industry still has the heft and the inventory to overwhelm Napster-like services, Fineman says. As he envisions the music library of the future, he imagines that student expectations in their formal listening assignments will hinge on online availability. (Fineman talks about a current student mystified by a listening assignment with a traditional LP; the student couldn't figure out why he had to turn over the LP after one side had finished.) "You have a company called EMI in Europe. They have the biggest collection of classical music in the galaxy, with a hundred thousand titles. Most of those titles have been digitized. If you're EMI, all you have to do is download the stuff onto a server and charge a library like us, say, several thousand dollars a year. And all of a sudden, instead of having 7,500 CDs in our collection, we have 100,000 of the best classical-music recordings ever made. That's the great equalizer. And Napster will never have access to those resources."

Entertainment lawyer Goldring says those record companies, as they come to rely on online distribution models, will have to become adept at helping consumers in making their choices-something that, he notes, the companies "have not proven themselves very adept at in recent years, with about a 95 percent failure rate in launching new artists." He says, "Up until now, we have relied on the record industry to be the gatekeepers to promoting and distributing their recordings and leaving all the unsigned artists to somehow figure out how to get their music to the masses on their own-which has been next to impossible. However, we now have a system which essentially allows every recording artist access and distribution to a wide public audience. The problem is, the fatter the pipe, the more it quickly gets filled up.

"It used to be that radio stations had deejays with a wealth of knowledge who would play music they personally thought was cool and tell you all about it with real passion. Or there were journalists whose opinions you trusted. Today, with systematized playlists at radio stations and talent scouts at record companies who are looking merely to sign a clone of the latest successful thing and not take chances, there are fewer and fewer trusted authorities who the consumer can rely on to help them separate the wheat from the chaff."

Goldring is convinced that there's a lot of money to be made for record companies, artists, songwriters, publishers, and service providers from Napster and similar services. Many consumers will be willing to "pay for the ability to instantly access any music they want to hear, whenever they want it, wherever they are," he says. A consumer can access film entertainment through traditional theaters, pay cable, free cable, pay-per-view, network TV, or video-store and library rentals. "In the music business, we are in the Stone Age, similar to thirty years ago, when if you wanted to see a movie, you had only two choices: see it in a theater or wait until it aired on one of the three TV networks."

Record companies are reluctant to make the transition from selling CDs to becoming a service business, Goldring says. "The danger is that the longer they hold out and try to keep the status quo, the more people will get used to getting their music for free, and the less people may feel compelled to pay for it in the future." One of Goldring's colleagues in the entertainment law field is Eric Greenspan '72. As a Duke student, Greenspan ran Major Attractions for the Student Union; he brought to campus, among other acts, the Grateful Dead, the Beach Boys, and the Allman Brothers. In his first year of law school, he promoted big-name shows, including the Watkins Glen Rock Festival. He's now managing partner for a firm whose clients include Jewel and the Red Hot Chili Peppers.

"All through the last century, you could always project how musical recordings would be distributed to the public," he says. Even as the packaging has changed-from player-piano software, to eight-tracks, to cassettes, to CDs-the store-to-consumer model has been constant. "But the industry just didn't anticipate the speed at which the whole industry has evolved on the Internet. When movie studios started releasing movies on videocassette, they never even considered the possibility that there would be rental stores. That development threw the whole model completely off. It's just what has happened with Napster."

A self-described "old Deadhead," Greenspan says he did his share of trading tapes and buying bootleg records. "But every time I would buy a bootleg record, I had every one of the regularly distributed records by that artist as well. I was that much of a fan. It's one thing if you share a favorite record with a friend; it's another thing if you give it to thousands of people you don't even know, and in so doing affect the distribution of the music."

He has a hard time accepting a principled defense of Napster, which he considers the equivalent of a new privilege for the already privileged. Napster, as he sees it, is "free music, in effect, but with two caveats: You have to be rich enough to own a computer and rich enough to own a fast modem. If you have a slow modem and want to download Napster, you might as well go to the store and buy the CD, because the download will take forever and the computer will crash. So if you're rich enough and lucky enough, the music is free.

"Whether or not you're talking about a big, bad record company or Metallica, the fact is that you're still taking that person's material, whether they want it distributed or not. As a general proposition, I find that a cavalier attitude. The idea that anyone can get anything he likes-there's something fundamentally wrong with that."

Greenspan, like Goldring, says the music industry will always need the mediating presence now provided by the record companies. After all, there aren't many random samplers of music via Napster, he says. "I hear statistics that say we have 10,000 artists, or 15,000 artists, or 20,000 artists. Well, isn't that great? Everybody has a way to expose their music. The problem is, why should I listening to recording artist number 18,571?

If there are 5,000 radio stations on the Internet, why is someone going to station number 4,152? We still need someone to influence people's musical tastes, sometimes for the better and sometimes for the worse. And artists still need that measure of promotion that major record companies can provide. There are marketing companies that can independently promote your music. Some of these streetwise companies are pretty influential in helping bands get exposed. But somebody has to pay those companies. And most bands don't have any money at the beginning of their careers. It's the record companies that have the money."

If record companies can't make money in a Napster age, they won't promote music; and if promotion dies, then the music-or at least the less tried-and-tested music-will die. "Anarchy doesn't work in the real-world market," Greenspan says. "Anarchy has never been a good way for making money."

The payment-for-privileges model may have earned consumer acceptance, but it hasn't rewarded artists very generously. Goldring says that as physical distribution and the attendant costs-for manufacturing and shipping, for example-go away, artists and songwriters should be better rewarded.

"Up until now, their deal with the record companies has been kind of Faustian. Record companies have essentially said to artists that we'll pay to record, market, distribute, and promote your records, but you need to give up 90 percent of the money on the record sales because by doing so, you'll become known and be able to generate and keep 100 percent of the money from publishing, merchandising, personal appearances, sponsorships, and other ancillary sources. Oh, and by the way, all of the money we, the record company, lay out to record your record, and a significant part of the money we spend on marketing and promoting your record and making your videos, is really your money being spent, not ours. We are going to recoup that money first out of your royalties, not 'off-the top,' before you'll actually see a royalty check."

What Goldring calls "the dirty little secret of the record business" is that most artists, except for the superstars, "never see any record royalties from record sales other than their initial advance." But "artists have lived with the deal all along," he says, "because they had no choice, and because it at least allowed them to have a music career and the opportunity to make money from those other sources." For those who indulge in music careers-and the legions of music listeners-old habits are eroding. Trent Hall's Brian and Alan, for example, had an intimate acquaintance with Scour, which, before it was dragged into bankruptcy, operated a music and movie exchange service. "How can I study when I'm taking in a Seinfeld episode online?" Brian jokes. As he talks with a visitor, he observes that one of the Seinfeld files stored on his hard drive has just been downloaded off his computer. The Simpsons are another dorm-room favorite, drawn from the same source. Some weeks after that conversation, the scene soured for Scour as it was confronted with copyright-infringement lawsuits.

But writing on the website eBookNet.com, Wade Roush notes that just over the last several months, a new generation of software has emerged that makes it easier than ever to share digital content over the Internet-not just music, but also movies and books. Unlike Napster, the programs are completely decentralized and largely anonymous. "Users essentially become nodes of a free, globally distributed lending library, where no one needs to give their name to get a library card (or, for that matter, return what they borrow)."

Gnutella can search for and share any variety of media file without a Napster-type central database-leaving no one for copyright holders to sue if their documents are pirated. A similar technology, FreeNet, calls itself a "near-perfect anarchy." Using the Internet as its transport mechanism, FreeNet automatically replicates content to many FreeNet sites, or "nodes," as soon as a file is introduced. As FreeNet says about itself, it "allows information to be published and read without fear of censorship because individual documents cannot be traced to their source or even to where they are physically stored." Its main designer was an Edinburgh University student working on his final-year project in artificial intelligence and computer science.

From a political perspective, these applications hold out the promise of making the Internet "even more freewheeling and democratic," in Roush's words. But from a commercial perspective, they "hold out the terrifying prospect of limitless content piracy."