Everyone can win if Napster comes up with 'for pay' plan

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For more than a year now, critics of Napster have been ridiculed as the dinosaurs of the digital revolution, out of touch with reality and fighting in vain to stop an unstoppable technology.

Turns out all along they were just people who wanted rightful compensation for the products they created and distributed. Thanks to last week's federal appeals court ruling against Napster, they can now get it.

Napster has been, and still is, a darling of the media, particularly of Internet journalists, who have eagerly painted the company's founder, Shawn Fanning, as a hero and all those who oppose him (by enforcing their copyrights and trying to deter the theft of their products) as villains.

As a peer-to-peer technology, Napster needs to be understood and appreciated by marketers; it cannot be stopped any more than the ongoing Internet revolution and the transfer of power from content distributors to end users. Certainly some of those who hoped to destroy Napster would be delighted to have the technology disappear along with it. Hell, they'd be happy (as I've heard some people say) if they "never heard of the Internet in the first place." Those people truly are the dinosaurs of the business, and they will be out of the way soon enough.

But to tar all foes of Napster with the same brush is wrong and allows supporters of Shawn Fanning to ignore rational arguments, to defend an indefensible and unsustainable model. The notion that information yearns to be free on the Internet is the same attitude that launched thousands of ill-conceived Web businesses, the empty shells of which now litter the landscape.

Most rational people don't toss their cable bills in the trash unopened every month, don't pick up magazines at newsstands and walk away without paying for them, don't swipe books from Barnes & Noble or CDs from Tower Records. Give me one good reason they should be allowed to download any songs they want from the computers of other Napster users without paying for them. "Because the technology allows it" is not an acceptable answer. That would be like saying that if car thieves can get sophisticated enough in their ability to bypass locks and alarms, laws should be changed to make auto theft legal. "Record companies rip people off by charging too much" also is a pathetic justification, made by the same types of people who use similar reasoning to justify stealing silverware from restaurants and bathrobes from hotels. Stealing is stealing. As the court said in its ruling, "Napster users do not engage in fair use of copyrighted materials."

While Napster lost the latest and most devastating round of its legal battle, media accounts of last week's ruling breathlessly pointed out that major record labels lost in the court of public opinion. Chat rooms were filled with the anguished cries of poor put-upon souls who would no longer be able to steal music.

The record companies are right to fight to protect their businesses. If Napster wants to ensure a profitable future based on a viable business model, its best bet is to cut deals with all the major record labels similar to the pact it reached last year with Bertelsmann. That also would lift a liability threat that could leave Napster owing a crushing amount of money to copyright holders. Teaming up with the creative community to create a for-pay Napster is not "selling out to the man;" it's smart business.

Napster's technology and all that it represents will not go away. Marketers would be wrong to want that, or to try to get in the way. They're not wrong, however, to build tolls along the road to collect the money they're due, and to develop models that embrace new technologies while protecting the bottom line.

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