I'm a nut when it comes to inventors and history. My favorite decades were the 20's and 40's when the technologies leading up to the invention of television were developed.

The embryo of what is now television was first demonstrated successfully by a humble farmer named Philo Farnsworth in 1927. A wanna-be named Vladimir Zworykin claimed he was the true inventor based on an unproven idea he had for television in 1923.

At this time RCA was a huge powerhouse in radio manufacturing and broadcasting and wanted to keep its control over the airwaves. The logical next step was for RCA to branch into television -- both in sales of TV sets and ownership of the broadcasting stations.

So, to avoid paying licensing fees to a "dumb farmer," RCA sued Farnsworth, claiming his patent was invalid and that Zworykin, now working for RCA, was the true inventor of television. RCA launched suit after suit, appeal after appeal, to wear Farnsworth out. Even though Farnsworth eventually won and RCA was forced to pay him licensing fees, he suffered from depression until his death in 1971.

What does this have to do with Napster? Although Napster won't have as much impact on the world as television, the courtroom drama is very similar.

In my opinion, the RIAA wanted to create a service that reflects the digital-music download model, but a "dumb outsider" beat them to it. But unlike Farnsworth, Napster will not prevail with their current arguments.

The following example shows why Napster is not violating the law: The selling of endangered species is illegal in the United States. However, let's say you did a Yahoo! search on "American Bald Eagle" and one of the hits was a site that sold American Bald Eagles. Law enforcement wouldn't go after Yahoo!, they would arrest the owner of the mail-order site. Yahoo! is not to blame because they are merely a "directory" of publicly-accessible links to websites.

Napster works exactly the same way. They are a "directory" of publicly accessible links to music files. There is a mindset in the music industry that Napster is an MP3 distributor that "houses" millions of files for the taking -- a virtual record store with no price tags. This is untrue. Napster simply is a "matchmaker" bringing together members looking for music with members who have music. The music may be illegal, but the fault rests with the members, not the matchmaker.

Napster will lose, because most people (including the courts) don't understand the technology. When an otherwise smart person doesn't understand something, they make judgments with their emotions rather than with their intelligence. The Napster judge is a perfect example (The Microsoft Anti-Trust judges are equally technology-clueless.) Murder and armed robbery are easy for the layperson to understand, complex technology is not.

I expect the following scenario to be played out. Napster will be shut down. The RIAA will win their case. Napster will appeal. Napster will lose their appeal(s). Napster will cease to exist (in its current state). The RIAA will directly or indirectly start a fee-based service using the Napster model as their blueprint.

This suit isn't about artists' copyrights -- most don't own them -- the labels do. It's not about distribution channels -- the labels own them already. It's about controlling a new technology that the labels had not been willing to create themselves.

Much like RCA, the RIAA doesn't want to kill the innovation, they just want to destroy the innovator and reinvent the software as their own. Napster should use this argument in court. If the RIAA denies the charge, Napster should challenge the RIAA to sign a statement saying that they will not create a similar service. They won't sign, because this distribution model has proven that it works and would be a cash cow for them.

U.S. District Judge Marilyn Hall Patel has granted a preliminary injunction against Napster calling it a "pirate" company. I would argue that Napster is more like a ship -- it's the actions of the sailors that make it a pirate ship.

Markus Diersböck is the Chief Technology Officer and Founder of CircleBox. Markus wrote his first "Hello World!" program in Basic as a 7th grader in 1980 on the Apple ][+ and paid his way through college tutoring corporate professionals on DOS, WordPerfect, and PC concepts. After moving to Arizona he started Data Conversion & Design, and later Computer Medics -- a hardware and network-support firm. Clients included Smith Barney, Motorola and Merrill Lynch. Markus sold Computer Medics six years later and moved to Massachusetts and worked as a consultant to companies like Mitre, Ziff-Davis, and Evergreen Funds. He has developed numerous Internet peer-to-peer software programs and services, including iDrop.com, the first-to-market web-file storage service in 1998. Markus has appeared in television news segments focusing on computer viruses and network security and in newspaper and magazine articles related to computers and software.

Copyright (C) 2000 Markus R. Diersbock. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed without written permission of the author.