The latest decision upholds Patel’s demand that Napster monitor its system for infringing files (which is arguably moot now, since the "new" Napster plans to distribute only pre-approved files), and also that plaintiffs provide detailed and documented instances of infringements.


Both Sides Don’t Get What They Want—And Neither Does Anyone Else in the Digital World
To say there was news on the Napster front would probably be an overstatement, but the Ninth Circuit Court of Appeals today basically rejected challenges by both plaintiffs and defendant to the preliminary injunction previously set down by Judge Patel.

The latest decision upholds Patel’s demand that Napster monitor its system for infringing files (which is arguably moot now, since the "new" Napster plans to distribute only pre-approved files), and also that plaintiffs provide detailed and documented instances of infringements. In other words, nobody got what they wanted—except the other side not getting what they wanted.

That didn’t stop the creative spinning, though.

"Once again, the Ninth Circuit Court of Appeals has affirmed that Napster must do everything feasible to police its system against copyright infringement," reads a statement from the RIAA’s Cary Sherman. As we have said from the very beginning, technologies are available that allow copyrighted works to be filtered out of a peer-to-peer system, and the big news from today's decision is the court's strong endorsement of that point."

"The Ninth Circuit's decision today affirming Judge Patel rejected both the recording industry's appeal as well as that brought by Napster," goes the frolicsome riposte from an unspecified "Napster spokesperson," who was clearly energized by Sherman’s playful prose. "We are pleased that the Ninth Circuit, over the plaintiffs' objection, reaffirmed the record companies' obligation to provide Napster with notice and file names of their copyrighted works appearing on the Napster system before Napster has a duty to disable access to those works. Although the Circuit's decision also rejected Napster's appeal, Napster has since developed a new service and business model that will not be adversely affected by today's ruling."

So, um, nothing new to report, we guess.

But the latest round of wrangling for position takes place against a darkening backdrop of proposed legislation and bad blood in the area of online entertainment.

A storm appears to be brewing, for example, around attempts to force a government-mandated standard for copy protection on all new digital hardware for consumers. Several media companies (spearheaded by Disney) are currently pressing politicos to support Sen. Ernest Hollings’ (D-S.C.) Consumer Broadband and Digital Television Act (CBDTA).

But the opposition is mobilizing as well—Digital Consumer, an advocacy group established by, among others, Excite co-founder Joe Kraus, claims it has already faxed thousands of letters opposing the measure.

The reasoning behind the proposed legislation is that only physical safeguards against unauthorized copying in machines like mobile devices, new video players and whatever all else comes along will motivate media companies to make content available online—and thus spur mass adoption of broadband and drive the long-delayed digital boom.

But Kraus and company argue that CBDTA is only the latest attempt to short-circuit consumers’ fair-use rights (such as making personal copies) and maintain tight control over what can be done with entertainment products. "Copy-protection doesn’t stop piracy," Kraus asserted to HITS. "In the early ‘80s, the software industry tried to use it to contain theft. It didn’t stop piracy, but it did manage to piss off paying customers who suddenly couldn’t do things like move the software off their old computers and onto their new ones. It totally backfired."

Kraus believes that if media companies abandon this security-heavy approach to entering the digital marketplace, they can build a sustainable business there. "The average consumer doesn’t want to act like a criminal," he insists.

Steve Griffin, head of StreamCast Networks—the folks who brought you Morpheus—hopes to strike a kind of compromise with MusicCity, a portal designed to allow rights holders to "wrap" content files of any sort and specify what users could do with them. The "rules-based" content would then be introduced into the file-sharing environment, programmed to time out and compel a purchase (or circulate for free as a promotional item), if the owners so desire. The concept has met with mixed response, given the status as Morpheus as one of the most notorious free, decentralized P2P applications.

Griffin says peer-to-peer is now "part of the fabric of our society," and that rather than "waiting for the perfect chastity belt," content-holders need to find a way to embrace it as a delivery form and exert what control they can.

Meanwhile, the folks behind ContentGuard look forward to presiding over a "rules-based" future with the newest version of the Microsoft/Xerox co-venture XrML (that’s eXtensible rights Markup Language, sports fans). In layman’s terms… well, it’s nearly impossible to put this in layman’s terms, but that’s never stopped me before. Basically, XrML is a programming language that teaches devices how to put the rules specified above into effect. The ContentGuard people hope XrML will allow rights-holders to "future-proof" their wares by being versatile enough to be adapted to whatever gizmos come down the pike.

What do they say to the assertion that the policing of content is more an obstacle to profitability in the digital space than a bulwark against loss revenues?

"People will bring bad business models to the marketplace and they will fail, and others will succeed," relates XrML Evangelist (yes, that’s really his title) Brad Gandee.

"But," adds Rajan Samtani, Director of Sales and Marketing, "even bad business models need to be unambiguously expressed."

Which brings us back to the Napster saga, the story of an ambiguous business model that we’ve described badly. We’ll have more non-news as it breaks, sort of.