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Napster's survival depends on its credibility

Usually, I'm pretty good about making up my mind on issues, but when it comes to Napster, I find myself on the fence.

My heart says "Go Napster" and "Stick it to those greedy record companies." Hey, this is "power to the people."

My old buddy Yippee leader Abbie Hoffman, author of "Steal This Book" and the subject of the recent "Steal This Movie," is probably cheering from the grave.

But my brain tells me that Napster is fundamentally flawed from an ethical, legal and business point of view.

I thought about this as I sat at the Ninth Circuit Court of Appeals, listening to attorneys for Napster and for the recording industry. Napster's lawyer David Boies, famous for successfully representing the Justice Department in its suit against Microsoft (MSFT), argued that Napster's activities are well within the scope of the copyright law. He claimed that it's fair use for individuals to share files as long as there is no compensation. He further argued that Napster is just a directory service without the tools to distinguish between music that can legally be copied and those files that are "infringing."

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