Get Ready for an Encore of the Napster Controversy

Colleges fear more legal problems as students continue to use the song-swapping software

By SCOTT CARLSON

There's a lot of music stored in Daniel's room, but you can't see most of it. Sure, there's a pile of CD's in one corner, and a few disks are strewn about. But hidden in the college student's computer are more than 1,000 MP3 files -- copies of songs he downloaded from other people's computers with Napster, the music-swapping

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software. In a record store, all that music would have cost a lot of money. He didn't pay a dime for it.

On a shelf, on a chair, behind the computer monitor against the wall are little piles of CD-R's, recordable compact disks, hard to see in their plain white packaging. In a corner of Daniel's room are bulk packages of these CD-R's, dozens of them, yet to be burned with songs that he decides are keepers. He's fond of the rock bands Counting Crows and Third Eye Blind.

Some people say using Napster is like an addiction -- compulsive, secretive, and illegal. If that's so, then these armfuls of CD-R's constitute Daniel's stash.

The West Chester University of Pennsylvania senior -- who asked not to be identified by his real name -- is a regular, and perhaps typical, Napster user. The other day, on a whim, he used his university account to download about 50 Patti LaBelle songs, "just for nostalgia." Like most Napster users, he usually downloads songs, burns some to disk, and deletes the rest. But he has also used his account to download songs, copy them to CD-R's, and sell them -- at a healthy profit -- to his friends.

"There have been cases where I've had a massive collection of MP3's on my computer," he says. "If my friends want them, I charge $3 for a CD that cost me $1. And they tell their friends about me, and I charge them $5 to mix up a bunch of artists for them. In the beginning, I did that sort of thing a lot."

All this despite the fact that West Chester has suffered such network congestion from Napster use that last spring it installed a block on its computer system to prevent students from using the application. But the block hasn't stopped tech-savvy students like Daniel, who says word is spreading about ways to circumvent it.

West Chester officials are approaching the fall semester with some apprehension, wondering if network traffic will be pushed back up to congested levels. And they are not alone. Many universities are wrestling with the technical, legal, and moral issues raised by Napster and other file-sharing, bandwidth-clogging, copyright-challenging programs.

This fall, the issues have a higher profile than ever. Napster, in the midst of a highly publicized legal battle with the recording industry, will appeal a U.S. District Court ruling ordering the company's service shut down. The appeals court will hear arguments in early October. After the lower court's decision, in August, Napster users mobbed the service, hoping to snag a few more songs before the end. The ruling has since been stayed, pending the appeal.

The recording industry's lawsuit is by no means Napster's only problem. In April, the rock band Metallica sued the company, along with Indiana University, the University of Southern California, and Yale University, charging that Napster was helping users violate the band's copyrights, and that the universities were complicit because they hadn't blocked students' access to Napster's server.

The universities were dropped from the suit -- after each one blocked Napster -- but the band's lawyer says he will send warning letters to some other colleges this month. Meanwhile, the Internet swarms with Napster clones. The best-known is Gnutella, an open-source file-sharing program that might be more difficult to control than Napster. Because Gnutella connects users without running through a central server, as Napster does, there's no single Internet address to block.

Universities are dealing with the song-swapping issue in two main ways. Among those whose networks have been clogged by Napster users, various kinds of firewalls and other forms of blocking are popular. Institutions whose networks haven't been overwhelmed by Napster use typically opt for educating students about copyright law and about the economic impact of copyright violations on the very artists whose music the students crave. Many of those institutions say they are wary of the ethical and technical quagmire into which blocking might lead them.

Those concerns are playing out this fall at the College of Wooster, which recently spent about $1-million to expand its computer systems. Among the additions is a firewall -- hardware and software that can prevent users on the campus system from reaching specified Web addresses, and can prevent outsiders from connecting to computers in the system.

Walter B. Owens, Wooster's director of computer service and sales, says the college configured the firewall to prevent Napster users outside the campus from downloading MP3's off students' computers. As a broker for MP3 files, Napster sends users to the fastest available computer systems, which are often those on college campuses, he says. That traffic can slow an institution's network to a crawl.

But Wooster hasn't decided if it will prevent students on its campus from going outside the college network to use file-sharing programs, like Scour.com and Napster, from which users can download both music and video files.

"We're not rushing to judgment on this," says Bob Walton, vice president for finance and business. "We do have concerns about the violation of copyrights, no matter who might make that claim, although we don't see that as our direct responsibility. We are very concerned about making sure that our resources are not cannibalized for entertainment use at the expense of education applications."

Wooster will probably wait to see what the courts decide about the issue, then use that as a gauge in forming a comprehensive policy. "I think we are here to encourage our students to be freethinkers and intellectual explorers, and we have to be careful about taking steps to hamper those intellectual pursuits," Mr. Walton says. "That said, I think our role is to try to build an intellectual base for the fair use of intellectual property. It's a delicate subject."

Officials at West Chester, however, haven't had the luxury of pondering such questions. Early this year, Napster use all but paralyzed the university's network traffic. Administrators responded by installing the strongest block that the outdated system could handle.

When students type "www.napster.com" into their Web browsers, West Chester's system routes them to a page that outlines the university's computer policy. Applications like Napster are verboten, it explains, because they congest the network and open students' computers to security risks.

In the beginning, at least, the block worked -- network use fell by about 70 percent, says Adel Barimani, director of computing services. But the block was flimsy by current technological standards, he concedes: "We know students are getting around it, but there's nothing we can do." Daniel, for instance, figured out an alternative route almost immediately. He just keys in the Napster server's numeric Internet address himself, rather than relying on the university's server to provide access.

West Chester is talking with computer-service companies that can help it update its system and strengthen its blocks. The update is needed anyway, but the firewall technology could cost $25,000 to $200,000, depending on the service and the software.

Daniel, for his part, says he understands that the university has a responsibility to ensure the smooth flow of its networks, and that he doesn't mind the blocks -- mostly because he is confident that he can find ways around an even stronger barrier. For example, he says, he could set up a proxy server, an off-campus computer that connects to Napster or other blocked addresses and relays the data back to the on-campus computer. "Technology like this seems to find a way to flourish, because the people want it," he says. "Blocking Napster is a short-term solution, because people want MP3's. If Napster goes down because of legal action, something similar is going to pop right back up."

"I think the only thing that the university can do is get the network bandwidth that can accommodate not only its own functions but also student recreational activity. The only thing they can do is get out of the way."

The prospect of blocking raises questions for campus officials. What, and how much, should be blocked? In an environment of free inquiry, should authorities resort to blocking programs that can have legitimate uses? For instance, some lesser-known musicians, hoping to attract wider audiences, have intentionally made their songs available to Napster users. And scientists at the Cold Spring Harbor Laboratory, on Long Island, have examined ways that Gnutella could be used to exchange data about the Human Genome Project.

In the Napster debate, "there is a public-relations business in which you have to deal with people and their interests," says Gregory K. Johnson, director of the computing-security office at the University of Missouri at Columbia, which hasn't blocked Napster.

Blocking, he figures, "is like standing before hundreds of hungry jackals and shouting 'Shoo!' to keep them away from 400 pounds of raw hamburger."

In fact, he's more worried about Gnutella, which is not only difficult to block, but also allows users to download several kinds of media files, not just music. "What you can get in those cases is pornography, videos, and full-length motion pictures," Mr. Johnson says. "This raises more issues besides copyright infringement. There are harassment and intimidation issues if people are [viewing pornography] in public places." Besides, he says, the large files necessary for video could exacerbate campus bandwidth problems.

Cornell University, where officials are concerned about free-inquiry issues and believe that blocking is a hopeless tactic, has taken an educational approach. In April, the university circulated an e-mail message to students, informing them of the security risks, network problems, and legal issues associated with file-sharing programs like Napster. This fall, Cornell has included similar information in its computer-use and -ethics class, which most new undergraduates must take before they are given network access.

"Our approach was to believe that there were legal uses of this category of software, and that it's important to make people understand what the legal and ethical limits were -- not just to ban a whole category of software, regardless of whether it was being used legally or not," says Polley A. McClure, vice president for information technology.

The university did not want to enter "a technology arms race," which would pit the university's resources against the next Napster or the next Gnutella, or against the technical savvy of its own students, she says. "I have concern that if you ban Napster in May, what will you have to ban in July and August and September, as new things in this area continue to evolve?"

"If you stop and think about it, the approach that we're taking will produce a more long-lasting adherence to what the copyright holders want," she says. "If we're just taking down one piece of software after another, there is no way that they would ever gain. If we can educate people and produce a culture in which people have respect for property, in the end their interests are going to be much better served."

But Ms. McClure also acknowledges that she doesn't know if the messages will sink in. Cornell officials are monitoring the network load, which was tolerable before the summer break started -- in part because computers in the dormitories, where most Napster-type activity takes place, operate on a subnetwork separate from that of the rest of the university. Because Cornell's educational campaign started just before the summer break, she says, there's no way to gauge its effectiveness yet.

Other institutions have followed similar paths. The University of Virginia and the University of Delaware require all new students to take tests covering the institutions' computer policies. It seems unlikely that students would miss any of the questions -- many of which are simple and some of which are didactically phrased -- but network administrators at Delaware note that the tests serve a purpose besides instruction: They can be useful as evidence against students who break the rules and then try to feign ignorance of them at campus judicial hearings.

Wanda G. Monroe, a spokeswoman for the University of Michigan at Ann Arbor, says the administration has mounted a publicity campaign about the issue. The university produced posters featuring a picture of a pig with a computer cable wrapped around it, and the words "Don't be a bandwidth hog."

Sheldon E. Steinbach, vice president and general counsel at the American Council on Education, says universities should support the recording industry's position on copyright infringement. He doesn't agree that concerns about a "technology arms race" should stop universities from blocking Napster and similar programs.

"Is that truly a reason not to do what is protective of legitimate property rights?" he says. "There are ways of getting around [blocks]. That doesn't mean that one shouldn't take the first step and make it clear to your student body about how you feel about intellectual property."

Howard E. King, a lawyer for Metallica as well as for the hip-hop performer Dr. Dre, who has filed a similar suit against Napster, argues that the educational approach won't make a difference.

"I don't think anyone needs any educating," he says. "These are college students. They're not idiots. They know that they're getting something for nothing. The gumball machine broke and all the gumballs are rolling down the floor."

He understands that the blocking tactic can be a "slippery slope," in which an institution could set a precedent that it might not want to follow. "They have to make a decision on a case-by-case basis. It's a responsibility that comes with the new technology. Once the new technology is here, you can't throw up your hands and say that it's too much work."

Mr. King, whose firm is in Los Angeles, says his clients are waiting to see what happens with Napster's appeal of the lawsuit by the Recording Industry Association of America. Both Metallica's and Dr. Dre's lawsuits have provisions for naming additional defendants, including universities. Although Mr. King says naming individual students is unlikely, he says he will send letters this fall to prominent institutions, which he would not identify, that have allowed students to use Napster.

"We've tried to do it in a nonthreatening fashion, saying that we know that you're aware that you have a tremendous bandwidth problem because of Napster, and that a high percentage of your bandwidth is being used to steal copyrighted material," the lawyer says. "We ask them to follow the lead of U.S.C. and the others, to analyze this issue, and we say that we're sure that they'll come to the conclusion that they should ban Napster."

Ironically, Daniel shares Mr. King's perspective, in a way. "Education doesn't work, because people have to see what they're doing is bad already, and I don't think what I'm doing is bad," he says.

He describes the file-sharing phenomenon as "dot.communism, where everything that you have you're expected to share with other people. It's just part of the nature of the Web."

"I understand that it might be the same thing as going into a store and swiping a CD, but when you're on the computer and the song is right there to copy and sample, you don't see it as taking something from somebody."

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