Marilyn Hall Patel, the district court judge in the Napster case, has been having some very subversive thoughts recently, we learn from case transcripts unsealed this week.

On January 16, the New York Times reports, Patel questioned if the record companies copyright extended to digital distribution of music, and granted Napster leave to explore whether the labels were colluding to prevent it licensing music for online distribution.

The first suggestion would represent a major setback for the RIAA, as its ownership of the copyright has never seriously been questioned. A modification of the copyright would cast doubt over the continuance of the record labels' pigopoly*.

That's the good news. The bad news is that Napster has neither the deep pockets, nor the stomach for continuing the fight, and agrees with the record companies that the case should be abandoned. According to the Times' report, Patel may encourage Napster to explore the ownership issue, even if a sweetheart deal between the two litigants is reached by February 17.

No company has ever been presented with such an opportunity to challenge the record labels on the key plank of its legal offensive. But Napster is intent on meekly securing a licensing deal that leaves the industry power structure essentially unchanged, and almost certainly guarantees its own irrelevance. ®

* Bootnote: Register term just entered beta-testing: n. Market condition formed by several extremely greedy oligopolists. [cf.]