Humming a Hopeful Tune at Napster

Twenty million Napster fans can’t be wrong.

Or can they?

A federal judge will decide next week whether Napster’s song-swap technology is illegal and he could temporarily shut down the Web site until the matter is resolved in court later this year.

In their first interview, the 19-year-old inventor of Napster, Shawn Fanning, and the company’s chief executive, Hank Barry, took a break last week from testifying before Congress to talk about the battle they face and how a software so loved by music fans came to be so hated by record companies.

The court action follows the filing of separate copyright infringement lawsuits against Napster by Dr. Dre, Metallica and the Recording Industry Assn. of America, the trade group that represents the nation’s largest record companies. The RIAA argues that San Mateo, Calif.-based Napster is violating the law by providing users with a directory of pirated music that can be swapped, copied and downloaded for free.

The Napster system gives users quick and easy access to hundreds of thousands of unauthorized recordings in virtually every musical genre from Louis Armstrong to Lyle Lovett. An estimated 20 million users have downloaded the software in the seven months since it has been in existence.

Fanning and Barry, however, argue that online trading of MP3 songs is legal and falls within the purview of the Audio Home Recording Act of 1992, which permits copying music for personal use. They also believe Napster stimulates record sales by allowing fans to sample new music that they later buy at their local record store.

Fanning developed the software last summer in his college dorm and began offering it free on a Web site shortly thereafter. So far, the record conglomerates have been unable to come up with any practical alternative to Napster, which currently has the fastest adoption rate of any new technology on the Internet.

Question: Why is the record industry so nervous about you guys?

Barry: I don’t think we make them particularly nervous. They’ve got seven big law firms on board fighting us. The fact is, I think, they have genuinely held beliefs about intellectual property. They think people sharing music files on Napster are infringing their copyrights. We disagree.

Question: How does it make you feel to hear the record companies acting as if all they are trying to do is defend the rights of the poor helpless artists? Before Napster, it was the record companies who the artists usually blamed for mistreating them.

Barry: Well, I don’t know enough about the relationship between the record companies and the artists to comment directly about that. One interesting thing to me though is the relationship that these companies have with the people who buy their products. By suing Napster, the music companies are effectively suing the users of Napster, who are some of their biggest customers. Napster fans are people who are very interested in music. A study that just came out indicates that 28% of the people who use Napster say they buy a lot more music as a result of being on our system. The fact is record sales are up 8% this year.

Question: What’s wrong with the way the music industry approaches the Internet?

Barry: I guess nothing, really. What they’re doing is consistent with what’s always happened in the past whenever a new technology appears. The piano roll. The radio. The blank cassette. Cable TV. The VCR. These are all inventions that upset the established order. The natural inclination is to try to stop anything that is new. But over time, these new technologies actually proved to be a boon to entertainment firms, not just for the folks who invented the new technologies.

Question: How did you come up with the idea for Napster, Shawn?

Fanning: Well, it came to me at Northeastern University in Boston after I was watching one of my roommates play around with Web-based search engines. He was having some trouble resolving a particular reliability issue. So I just drafted up a small design document and started writing it on the spot.

Question: How is it that nobody in the entire $40-billion music business figured this thing out before you?

Fanning: I don’t know. It was really a pretty simple idea. All I did was combine search engine technology with community-based interaction technology. It’s a great system in that it allows you to find people with similar tastes who expose you to music you never heard and then you can chat about it with them.

Question: I imagine it didn’t take the record labels long to come pounding on your door. How many music industry job offers have you received since you launched Napster?

Fanning: None. No record label has ever approached me. I’ve never even received a phone call.

Question: Can you explain as simply as possible exactly what Napster does?

Barry: The application Shawn invented allows users to learn about the musical tastes of others, share files and chat about music online. When you download the application, if you choose to share files, the application makes a list of all the music files you have on the hard drive of your computer. Then it transmits those file titles to the central Napster directory. The central directory is an ever-evolving list that includes all of the music available in the entire Napster community. Depending on when you access it, the directory could include 100,000 songs to a million. Users can search that list any time and see what other people like and then share whatever they please. They do this for no money and expect nothing in return.

Question: How many people have downloaded, installed and registered Napster?

Fanning: Almost 20 million in the seven months since we started.

Question: The record companies have yet to go after Gnutella or Freenet or any other new technology company except MP3.com. Do you feel unfairly targeted?

Barry: Not really. I think the idea is for them to try to get a big victory over Napster, put us out of business and then use the precedental effect of that victory to go after Gnutella, Freenet and everybody else.

Question: All of the current swap-and-copy technologies mushroomed over the last year or so. Aren’t they likely to spawn a new wave of even more threatening applications in the years ahead?

Fanning: Technology is going to continue to evolve. That is certain.

Barry: The reality is that the next big thing already is being developed somewhere by some 17-year-old high school student completely off everybody’s radar.

Question: A lot of people in the music world think that you’re going to get slapped with an injunction and lose this lawsuit.

Barry: We don’t think so. But that’s what they want to do. They want the sheriff come in and shut down the system next week. They don’t want to wait for a trial. They want the judge to issue a preliminary injunction, which would close us down until we prove our case in court. But the judicial standard for that kind of extraordinary relief is very high. They have to show that Napster has caused irreparable harm to the record companies. They also have to show that our users are infringing copyrights. We believe our users are sharing music legally. We believe Napster use doesn’t hurt record sales. It helps boost sales. The fact is that record sales right now are at an all-time high.

Question: Do you think the record industry can sue new technologies out of existence?

Barry: There is a tendency for the giant corporate owners of copyrighted materials to try to use the monopoly that consumers give them to further their interests as new technologies come along. But history shows that there needs to be a balance between the interests of copyright holders and the interests of society as a whole.

Question: How do you expect to make any money if you don’t charge people to download or use Napster? What is your business model?

Barry: The question of our business model is something that we are ultimately wrestling with every day. I just don’t have a good answer for you yet.

Question: Is Napster for sale?

Barry: No.

Question: Has Seagram or Time Warner or any other record company tried to purchase Napster?

Barry: Not to my knowledge.

Question: What is the most important point that readers should walk away knowing about this battle between you and the RIAA?

Barry: I think the RIAA’s version of what Napster is doing might sound pretty good when you first hear it. But I believe people are finally beginning to understand what this dispute is actually all about. The fact is, Napster is an important technology that exposes fans to new music in a way never before available. It’s quick. It’s easy. It’s convenient. Millions of people love using it. The record industry should not be allowed to just squash it.

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Music on the Web

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A special times report with articles about the growth of music sharing on the Internet is at https://www.latimes com/musicweb.

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Coming Up . . .

* P.J. Huffstutter looks at the music industry’s difficulties in recruiting young technologists to help combat the giveaway of their copyrighted songs on the Internet.

* Chuck Philips interviews Vivendi Chairman Jean-Marie Messier and Seagram Co. CEO Edgar Bronfman Jr. about their pending merger and their best defense against music piracy on the Internet.

* Chuck Philips talks about the issues facing the music industry with Time Warner President Richard Parsons, who will become head of the music division after his company’s pending purchase of EMI and its proposed acquisition by America Online.