Analysis: Experts agree Napster cannot be stopped, Part I

Inadequate protection against online file sharing means Napster and its variants have nothing to fear
Written by Justin Pearse, Contributor

Ever since its inception, the MP3 file format has been dogged by controversy. By allowing users to distribute CD-quality copies of music tracks all over the world via the Internet, the software has had the record industry up in arms and on its way to court... again.

The development of software applications that allow users to browse and share each other's MP3 collections, such as Napster, has rekindled the debate over the damage the format is doing to the music industry. Thursday saw the waters muddy still further, with a Napster variant, called Wrapster, being launched. Wrapster allows the free distribution of any type of file (currently, Napster only works with the MP3 format).

The Recording Industry Association of America (RIAA) is not at all happy about this, and has slapped Napster with a lawsuit. But while the legal eagles peck away at the app, experts agree young Shawn Fanning, Napster's creator, has nothing to fear.

According to the UK's Federation Against Software Piracy, there's no way of stopping Napster, nor its imitators. Unsurprisingly, the situation is causing a fair amount of panic.

According to George Gardner, a partner at London law firm Tarlow & Lyons, the biggest issue facing copyright holders in the UK -- and this includes record companies -- is that Europe lacks adequate legal protection against online file sharing applications like Napster. Gardner explained to ZDNet that because the software enables client-to-client file trading, no content is held on Napster's servers, so no copyright action can be brought against it.

Gardner added that although a breach of copyright takes place when a file is transferred between users, it would be logistically impossible to track down and prosecute each of the millions of users actively involved in the illegal act. The only way of stopping the Napster juggernaut would, said Gardner, be to prosecute the developers of the software itself. The problem, however, is that "there is nothing in our or the EU's law to stop this software".

Gardner referred to the precedent set in 1998, when record company CBS took on Alan Sugar's Amstrad. CBS sued Amstrad, claiming that its high-speed, tape-to-tape machine breached copyright law because it could only be used for recording and not playback.

The court ruled in Amstrad's favour, and if Gardner is right, the record company will need to make peace with Napster, rather than trying to fight it. "The body of case law would in no way hold that this software [Napster] would be in anyway infringing of copyright," said Gardner.

Trade associations charged with protecting artists' copyright are far from happy with the situation. The eruption of programmes such as Wrapster , which allows the free distribution of any kind of software, has the film industry seriously concerned. It knows it is only a matter of time before films will be passed across the Web as broadband approaches.

See also Part II.

Take me to the MP3 special.

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