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Most of us would never dream of walking out of a music store with a CD we hadn't paid for. Why, then, do so many people think there's nothing wrong with downloading copyrighted music from the Internet?

A federal judge's injunction against Napster late Wednesday was a big relief to those of us who've been worried about the erosion of intellectual property law. It's about time somebody put a stop to the theft of copyrighted material and figured out how to make an honest company of Napster and its clones.

Napster immediately appealed the court's injunction, and two federal judges granted the company a stay of execution Friday, allowing it to stay online at least temporarily. The judges said "substantial questions" had been raised about the merits of the injunction.

Although the average 14-year-old could explain how Napster works, I've discovered that many people my age and older aren't familiar with it. So here's a little Napster 101:

Napster is a web site where you can download, for free, a software program also called Napster (Macster, if you're a Mac user). Napster's website also contains a database of song titles which have been logged in by members of the quaint-sounding "Napster community." To become a registered Napster user, you need a login (real or imagined), a password, and an e-mail address. Then you can connect to the database, type in a song title, and listen to or download your selection from the computer of any other user who has the song and is currently online.

Napster is the brainchild of Shawn Fanning, a 19-year-old Northeastern University drop-out who was swapping MP3 files (a compressed format for quick transmission) with friends without any coherent cataloging system. Fanning says that file-sharing was secondary to his desire "to build communities around different types of music." Fanning's uncle, a computer-game company owner who gave young Shawn his first PC, convinced him to go public. Napster debuted in September 1999. Now, young Fanning, who, according to Newsweek, applied to only two colleges because he couldn't afford more application fees, is the beneficiary of a $15 million venture capital investment in Silicon Valley.

How all this has changed Shawn Fanning, other than making him much richer, is not clear. Before the media, he appears in polo or t-shirts, a baseball cap shading his eyes. It's the quintessential Generation-X pose: I'm in here somewhere, but I'm not going to make it easy for you to find me.

How Napster has changed the music industry is painfully clear, though. The cover of my August MacWorld magazine invites me, "SAY GOOD-BYE TO YOUR CD COLLECTION: NAPSTER LETS YOU STEAL YOUR SONGS." At least that's truth in advertising. The establishment of a system which allows others to pirate music is a threat, not only to musicians, but to anyone who produces material protected under intellectual property law: writing, film, art, even computer software.

Copyright law in the United States is generally defined by the federal Copyright Act of 1976. According to that act, any intellectual material produced on or after January 1, 1978, is protected for the author's lifetime plus 70 years. (For material produced prior to that date, the rules are trickier.) The 1976 act also established exemptions to protection for material whose use was deemed "fair." The Fair Use Doctrine has four components (the more "no" answers, the more likely the use is "fair"):

• 1. Is the user out to make a profit?
• 2. Is the copyrighted work highly original? (the less original, the fairer the use)
• 3. Is a high percentage of the work used? (the less, the fairer)
• 4. Will the use of the material impinge on the copyright holder's ability to profit from the copyright via normal means?

It doesn't take a new media lawyer to figure out that Napster can't claim protection under the "Fair Use" exemption.

Even though it doesn't profit from users' file-swapping, the concept fails tests 2, 3, and 4. Songs are generally highly original; Napsters users download entire tracks, not just snatches; and it's contrary to logic to claim that offering songs free via the Internet won't cut into artists' and recording companies' profits. Napster insists that its users buy MORE music, using its service as a sampling mechanism. Both Napster and the Recording Industry Association of America (RIAA) have sponsored studies of Napster's effect on music-buying habits. The studies conflict, and, according to Thursday's New York Times, experts say both are flawed. Regardless of what the users tell researchers, the idea that people who can get music free on the Internet are just as likely to buy it just doesn't make sense.

The Copyright Act also contains a "personal use" exemption. This means I can make a few copies of my own CDs to give to my families and friends. That's a far cry from Napster users trading hundreds or even thousands of copies of a single recording on the Internet with complete strangers. The ease of the transmission makes the song-swapping, in this case, a far greater threat to copyright under item 4 of the Fair Use Doctrine. By contrast, no individual will take the time and trouble to distribute enough copies of one CD or song to threaten an artist's profits.

The Digital Millenium Copyright Act (DMCA) of 1998 offered some protections to the New Media. For example, under DMCA, a web site can store or link copyrighted material, so long as it designates a specific agent to collect reports of copyright infringement. Napster's copyright violations officer, Sean Parker, is named on its web site.

Here, then, is the legal quagmire: because of DMCA provisions, Napster itself squeaks by copyright law, but its users violate it twice each time they download one song, infringing upon the copyrights of both the artist (for the song) and the label (for the recording). It seems reasonable, at the very least, to say that Napster is aiding and abetting in the theft of copyright. In fact, the RIAA lawsuit against Napster (filed last December) maintains that the company is guilty of "contributory copyright infringement."

Napster has claimed repeatedly that it stores titles in a centralized database and has no culpability for what users do with the songs catalogued there. Even more offensive, the company has said it has no KNOWLEDGE that illegal activity is under way, which strikes me as preposterous. It's like the guy holding the bank door open while his buddies are robbing it and later claiming he had no idea what they were doing inside. Although claims of establishing a "music community" where fans can have discussions and new artists can be discovered have some merit, the primary purpose of Napster is to make music available to people free. Shawn Fanning's accounts of the company's origins make that clear.

Napster's claims of ignorance to copyright violation also run contrary to fact. The members of Metallica were stunned to discover that their song-in-progress for the "Mission Impossible 2" soundtrack was being traded on Napster. Metallica, led by drummer Lars Ulrich, tracked down more than 300,000 users who, they believed, had violated their copyright and asked Napster to cancel their accounts. Subsequently, Metallica, Rapper Dr. Dre, filed lawsuits against Napster alleging copyright infringement. So Fanning and his Napster associates must have been deep in cyberspace to miss out on all this action.

Napster poses a particular problem for college and university campuses, as many of the media-savvy young Napster clients are currently enrolled. Song-swapping sometimes ties up college servers, creating an impediment for those doing serious academic work. It also violates a number of institutional computer-use policies. It would clearly violate Ferrum's, which prohibits the "sending or receiving of copyrighted material without permission." Not surprisingly, Metallica has also asked several colleges and universities whose servers were being used to swap their songs to ban Napster. Some have. Free-speech absolutists would do well to remember that private campuses have every legal right to regulate the Internet access they provide to students, and even state schools have no responsibility to provide students a means of violating copyright law.

Personally, I find the most offensive claim of Napster users to be the notion that they have a right to steal music, that their actions are protected by the First Amendment. Napster-ites have been particularly rabid in the wake of Judge Marilyn Patel's injunction. Thursday, the tenor of responses on The New York Times's digital music forum was harsh and generally pro-Napster. One contributor wrote "down with the American plutocracy -- that favors the wealthy, i.e., 'special interests' over individual rights." This is where I see the erosion of respect for intellectual property law. On Friday, Ian Clarke, creator of Freenet (a site allowing users to swap not only music but also video and text files) was quoted by The New York Times as saying he would "contest the assumption . . . that information is property." THAT is a frightening attitude.

Another participant in the Times's digital media forum said Napster users should "boycott all those who have nothing but greed in there [sic] hearts . . . They forgot about the fans." I was disappointed to see such a reputable publication as Newsweek contributing to the notion that musicians who won't give their music away disregard fans. The magazine characterized the two pending lawsuits in this manner: "While so far only Metallica and Dr. Dre have taken the step of moving against their fans . . ." The notion that it's callous for artists to expect the money they deserve from their music is nonsense.

Author Stephen King announced recently that he will offer his new book, "The Plant," in Internet installments, at the price of a dollar a chapter. If 75 percent of downloaders don't pay, King says, he'll stop writing the book. Is this "turning his back on fans?" What right do King's readers have to expect him to work for free? Would we expect Tiger Woods to win golf tournaments without payment?

Newsweek also eggs on those who want to see the Napster debate as a dichotomy between high-powered record executives and innocent kids who like music. The magazine called its June 5 cover story "Kids vs. Suits: Who Should Own Music on the Web?" The answer to that question is VERY simple. The people who create music own it, and the labels which record it own the recordings. Whether you download it, walk out of a record store with a CD in your pocket, or sneak into Lars Ulrich's house and take his sheet music, you're a thief.

Next week: The Napster debate, part II. What role can Sony's VCR trial of the early 1980s play in helping to sort out the copyright controversy? What can the music industry learn from Napster? And what is the future of music distribution? Stay tuned.