Seems that Napster's summer of free love might be over and its 50 million users will be turfed out on their virtual ears. Last week, judges in San Francisco ruled that facilitating millions of users to swap other people's intellectual property was, in fact, a breach of copyright. And rightly so.

Napster exploited a loophole in the copyright law by building a virtual directory that provided links to music residing on its users computers rather than actually holding and giving away the music itself.

For years, people have been copying CDs, records and tapes but using the Internet to distribute the music raises the bar because suddenly millions of users have access to it. Clearly, it's a good means of promoting music but let's face it, you are not going to rush out and buy that copy of Tom Jones' Pussy Cat that you have just downloaded.

And while it's difficult to feel sorry for millionaire rock star groups such as the heavy metal band Metallica, who personally went after Napster, the question is, where does it stop? MP3, the digital music format, is fast becoming the most popular format to listen to music. After all, those of us who use it regularly, simply cutting and pasting files from one device to another, regard the dark old days of recording a vinyl record in the same way our parents look back at the wind up gramophone.

However, both Napster and the record companies have made several major mistakes during this whole fiasco, which I believe neither will recover from.

Let's deal with Napster first. Its basic mistake, according to a former member of the senior management who shall remain nameless, was that it set up the services first and when millions of users were swapping music files it went to the music companies and held a gun to their heads. Sign up or else was the general gist of its business contracts.

Hardly appropriate for those who pretend to be such music freedom fighters. Let's make no mistake. Napster's management, however eloquent, is not trying to change the world. Like everybody else in this godforsaken place it is just trying to get rich.

Secondly, while the Internet market research firm Webnoize says that Napster users it surveyed would be prepared to pay up to $15 a month for the service, I believe that this is unlikely. First off, when you buy a CD you get to keep it. You don't lose the recording unless you lose the CD.

With digital music, you are likely to lose your whole collection about once a year. Why? Because some little maggot is going to write a virus that thrases your hard disk.

But it doesn't matter if you have not paid for your record collection. But let's say you have paid a couple of thousand quid - about 100 CDs - then you are going to be angry. What is needed is a way to protect your music and the rest of your data from being thrashed when your PC decides it's time to split.

However, what people will be willing to pay for is the ability to record or download any track, by any artist, on any label at any time at the push of a button. This is the legacy that Napster has left. It has given us not only ease of recording but the ability to select and mix and match our favourite artists and tracks. Certainly, the good old tape gives the same ability, but at a price - sitting and changing CDs every few minutes.

Huh, exclaims the music lover, I remember a day when I had to get up and change the record every three minutes. But not any more. This generation likes digital convenience.

However, what is really happening is that the public has got a taste for selecting their own music track by track. In the past the record companies have done a good job of foisting a whole CD on us. Making us pay between $15-$20 for 15 tracks when you really only want one or two of them.

Personally, I don't believe that the public will be able to go back to that day. This is what petrifies the record companies. They have lost control of their business. And high time too. Now there are least 50 million consumers around the world that won't stand for it any longer. They want any track, from any artist, on any record label and they want it now. They will pay for it by they won't be ripped off.

And they will want to be able to play it on as many devices as they wish. How are the record companies going to meet these demands and make money? But if they don't, there will be other harder to prosecute Napsters tomorrow.

Niall McKay is a freelance writer living in Silicon Valley. He can be reached at www.niall.org