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Lawyers, it’s said, lag 20 years behind the cutting edge of intellectual trends. Ditto for technological trends: How many law offices were wired to the ARPAnet (precursor to the Internet) in the 1970s and ’80s? Or even to the World Wide Web as recently as 1995, when the Netscape and Mosaic browsers were on their way to opening the Web to the world? But, at least with regard to the Napster controversy, lawyers may be ahead of the pack in having a glimpse of the future of digital content. Make that two glimpses — Westlaw and Lexis. If we believe the arguments of the IP warriors, we stand at the battle line between two radically different regimes. The litigants on either side agree at least on this: When everything is said and done about the fate of copyrighted materials in the age of high-speed Internet connections, rewritable compact discs, MP3, Napster, FreeNet, Scour, and Gnutella, only one of two worlds will remain. If the Recording Industry Association of America (RIAA) gets its way, every song ever recorded will stand secure and impenetrable to hackers — through legal solutions, technological fixes, or both. But if the open-access folks prevail, we will live in a digitized “Age of Aquarius,” complete with “mystic crystal revelations and the mind’s true liberations.” That is, free music for all. But maybe, in the words of the Talking Heads, everything will stay the “same as it ever was.” Why? Think about Westlaw and Lexis (Wexis, for short). And consider the following. Let’s say that the RIAA has the better argument and lawyers in the Napster case. How will the system work then? The recording industry will still want to sell music and will want to sell it online. So it will create a massive database, pooling all of its content. Customers will be able to search for genres of music, artists, or albums. Or maybe everything that was sung at Woodstock. And then, for a fee, users will be able to download the music. Some of that money will get funneled to whoever owns the Web site, some to investors who own the copyrights, some to the artists. And don’t forget the IRS (“There’s one for you, 19 for me / ‘Cause I’m the taxman,” as George Harrison insisted). As far as the recording industry views that system, customers will pay for the music, and it will throw in the searching apparatus for free. This should all sound familiar, since it’s essentially how the news side of Wexis works. You want every article from last year about Metallica and Napster? Take ‘em. And you — or your office — pay Wexis. It keeps some of the cash and passes on the rest to the newspapers and magazines that printed the articles, and to whoever else has a stake. It’s been a pleasure doing business. But David Boies, who represents Napster in court, is pretty good at what he does. Let’s say he wins the Napster case and all the similar ones that come along. What then? The free-love/free-music crowd says that’s the end of the story. Music to the masses. But it’s not that simple. Try using Napster or any of the other peer-to-peer searching methods. Even if they don’t crash your computer, they’re hit or miss. Maybe “Jailhouse Rock” is on someone’s computer logged onto the network when you log on, or maybe it’s not. And just try to do a more sophisticated search. An entire album, maybe, sought by name? Good luck, unless someone was nice enough to add the album name to every song. And genres? Geographic locations? All the Van Halen songs without Sammy Hagar that use sampling? Forget it. The P2P systems just don’t work that way. For users, these systems are similar (in functionality, not in architecture) to the network of free legal research that’s been developing on the Web lately. Over the last couple of years, lots of courts have posted official sites with decisions in electronic format. They’re easy to use if you know the parties in the case you’re looking for and if the case is fairly recent. But for anything more complicated, the Web pages are unusable. The courts’ sites tend to group opinions into separate areas for each month of each year. The search engines are crude and slow, or simply missing. And if you want to do a search for every court in the country, you pretty much need to do a search in every court in the country. Checking whether a case is still good law could take a month (at which point the information will be stale and you’ll need to start again — talk about padding billable hours). So what will the music folks do? All that free content, but, in the words of U2, “I still haven’t found what I’m looking for.” Capitalism comes to the rescue. Someone will set up a database with as many songs as possible, categorized in every conceivable way. That takes money. So the entrepreneur will charge for the service, either through ads, or direct payments, or both. And who will set up the system? Anyone. Maybe Napster. Maybe Microsoft. Or maybe, even, the RIAA. Now click back to Wexis and, specifically, to its legal research section. There it is, all that public-domain content — case law, statutes, regulations, ordinances — paid for by the taxpayers, and therefore free to the taxpayers. But it’s not free on Wexis. Only if you pay can you access all material they’ve scanned in, organized, summarized, and indexed. But when you do pay … you want to do a nationwide search on every case involving copyright during the last decade? Moments later, there you are. The business model for this half of Wexis is the opposite from the other half. Here the content is free, and it’s the search apparatus that costs money. Again, it’s been a pleasure doing business. And that’s the key point: To the users looking for either copyrighted newspaper articles or public-domain case law, the cost is the same. One flat fee, and the world is at your fingertips. You pay, you search, and you receive. The business models are invisible. For music, it’ll be that same old tune: Listeners will pay to search for and download music. The only question will be who gets their checks. And to win the right to those checks, you can be sure that lawyers on both sides of the Napster litigation are paying to use Wexis.

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