BOIES DON’T CRY,
BUT HE SURE CAN VENT

Napster's day of reckoning is drawing near. In the first week of October, a three-judge appeals panel will decide whether an injunction against the file-swapping service will go into effect.

Lead legal counsel David Boies is confident Napster will emerge victorious. In an interview in the new issue of Wired, Boies expressed the importance of the upcoming hearing.

To Boies, the Recording Industry Association of America's anti-Napster vendetta stemmed from fear of the technology. "I think the goal is clearly to destroy Napster... To destroy it and then try to take over the technology.... Even if they destroy Napster, they're never going to destroy this technology. They will not be able to keep the kind of control they want. I'm not sure their actions are entirely irrational; by destroying Napster and taking control of the technology in the near-term, they can preserve their market dominance for some period of years, perhaps. But it's a very difficult position for an industry to take. An industry that goes to war with its customers is not an industry that will ultimately prevail."

He feels that file-sharing should in fact be legally protected under the Audio Home Recording Act, which authorized non-commercial recordings of copyrighted material, although Congress could not possibly have anticipated the scope of the Internet.

"Congress has struck the balance to say that if there is commercial copying, the copyright-holder controls it, and if there is non-commercial copying, the copyright-holder does not control it. Is this the right balance?"

He added, "I think it's a pretty good balance.... We never would have passed copyright laws in this country unless we believed they helped consumers by generating creative activity."

Even if Napster is eventually stopped, Boies admits other, less-secure, services will take its place. "I think the real danger here is that if you shut down a service like Napster, which has the potential to be much more efficient and more protective of copyright holders, you will drive everybody to a less efficient system that is less protective of copyright holders."

Boies said Napster is receptive to the possibility of a settlement. "I've said before that we believe this case ought to be resolved. It ought to be settled. I've also said that if the recording industry is determined to destroy Napster, we will not go quietly into that good night. We are going to litigate the issue, and litigate it forcefully."