Forbidden Fruit

It's the world's largest music and movies superstore, and everything in it is free—and illegal. Every month, some five billion illegal downloads are passed around the internet, and the entertainment industry sues several hundred people. CP writer St

Which is how the mp3 gave birth to Napster. At one of those wired schools—Boston's Northeastern University—a student named Shawn Fanning took it upon himself to make it easier for his friends to find songs in the new format. He called his music search program Napster, after the nickname friends had given him for his hairstyle. It linked users' computers to a central server that allowed everyone to help themselves to each other's entire music collections.

Because Fanning's design was relatively simple and didn't require advanced knowledge of computers or the internet, anyone could use it, and everyone did. It became such an immediate hit on American campuses that some schools banned it for bogging down their computer networks. At first, the music on Napster reflected the age and taste of Napster's collegiate audience, but as word spread, so did the sonic neighborhood. Soon enough it was filled with every kind of music imaginable, all of it meant to be taken by anyone who wanted it. (Whatever was downloaded by users automatically went into their "Shared" folder, which was then offered to anyone else looking for that same piece.) Napster's popularity exploded. In one year's time, October 1999 to October 2000, the service went from 400,000 registered users to 40 million.

The story of Napster as a business, documented in Joseph Menn's 2003 book All the Rave, is an unfunny comedy of errors featuring a bright kid stuck in the middle of a controlling group of nitwits and get-rich-quick schemers. The last were perhaps best represented by Fanning's own uncle, John, who spun fantasies of turning Napster into a $10 billion enterprise despite the seemingly daunting facts that its lone product was a) free and b) illegal.

From the beginning, nearly everyone involved with Napster was counseled that the company's service broke copyright laws and would be shut down by litigation from the music industry. Yet even the prospect of incurring fines and legal costs on top of the initial investment nut did not dissuade venture money from flowing to the company. Napster's business model, in essence, was to get millions of users together in one place and leave for later the question of how to turn their patronage into money. (Its present-day, legal incarnation charges subscription fees—and has never come close to turning a profit. In the first quarter of 2006, it posted a $17 million loss.)

But even as Napster hit its highwater mark of 40 million users in October 2000, the end was at hand. It was probably not a good sign for Napster that its lawyer, David Boies, was also the man who guided Al Gore's legal team in Florida after the 2000 election. But no attorney alive could have changed the outcome: The record industry, as universally predicted, won its lawsuit against Napster. The last gasp came on July 11, 2001, but the users (now routinely foiled in their music searches by blocking software) had been drifting away for months by then.

If Napster's demise spelled the end of downloading culture's Summer of Love, the last time everyone would gather in one place to share whatever they had in their collections, it also represented the last time the entertainment industries would be able to notch a major victory in the war on web piracy by closing down a single site or service. Post-Napster, as trade associations like the Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA) got more aggressive, dragooning cops and courts into their pursuit of copyright violators, downloaders did what any herd of critters being chased by a bigger, better-equipped predator would do: They organized themselves into smaller packs and fanned out through the digital forest. Today a vast number of sites large and small serve illegal downloads by means of not one but several file-sharing technologies. The number of downloading resources is hard even to estimate in view of how rapidly particular sites crop up, disappear, or migrate to new servers, often either one step ahead of or behind the law.

You can pretty much pick your own metaphor for the skirmishes between entertainment industry forces and downloaders in the five years since Napster folded. It's a digital cat-and-mouse game. Cops and robbers. A wide-scale, low-intensity guerrilla war. The industries, in concert with U.S. law enforcement agencies, have taken up a two-pronged attack plan:

• Use the courts to take down a dramatic number of offenders in very public, very punitive ways. Since 2003, the RIAA has filed thousands of lawsuits against individual downloaders and uploaders, typically rolling out several hundred new cases per month. This litigation was designed to put a serious gouge in defendants' bank accounts—the RIAA, to date, has sued over 18,000 "songlifters," reportedly insisting on settlements that have averaged $2,000–$4,000 per case—and to generate scary headlines for the edification of would-be offenders everywhere. The MPAA has proceeded in a more deliberate manner, filing fewer actions but exacting harsher penalties as well: So far, two uploaders of movies have been sentenced to prison terms.

Track and shut down as many high-traffic downloader sites as possible. Once the Napster decision was handed down, it became a simple matter to enlist the help of U.S. law enforcement agencies in shutting down illicit servers, so most of the action naturally moved offshore years ago. But in the past couple of years, the U.S. has been markedly more successful at getting foreign police agencies to do its bidding in copyright cases. One of the more prominent victims was SuprNova, a mega-volume provider in Slovenia that was raided by state police in December 2004, shortly after that country joined the European Union.

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