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open-source versions of Napster also came into their own with the real service down. OpenNap servers began spreading in earnest. While Morpheus, Kazaa, and the other descendants of Gnutella got far more press attention, by some measures the OpenNap version of Napster draws more music seekers, according to the RIAA's Frank Creighton.

With no more legal recourse and no deal with the labels in the offing, Napster's only other way out was a Hail Mary to Washington, D.C., and Barry lobbied hard for a mandatory license to force distribution of digital music. Helpfully, the record industry's unpopularity had only grown during its fight with Napster. And a law that would save Napster by making the labels share their wares in new ways was not unprecedented. The 1992 Audio Home Recording Act was the grandest of the recent compromises, expressly allowing home copies and mandating fees from the sale of blank cassette tapes that were in turn distributed among music authors, performers, and publishers. Congress had also stepped in to allow cable companies to rebroadcast shows aired by conventional networks and to sort out the rights of jukebox operators.

Much more commonly when Congress got involved, it tended to favor copyright holders—so much so that most Americans probably believed that copyrights had always been around, had no caveats, and were permanent. In fact, for most of the world's history, musicians were free to pick whatever music they wanted, earning money only by performing. The same is true of Shakespeare and other writers, who were free to copy each other or stage someone else's plays. When copyrights did come into being, it was because technology had changed the lay of the land.

Copyrights began in 1710 in England, after technology made it feasible to copy manuscripts. Since then, there has always been a balancing act between the interests of the creators and the interests of the public. The public's side of the balance, according to some scholars, probably peaked in the United States at the Constitutional Convention of 1787. It was there, at the behest of James Madison, that the framers adopted the copyright-and-patent clause of the document, giving Congress the power to promote the progress of science and useful arts, by securing for lim-