Napster Japan, a JV between the US version of Napster and Tower Records Japan, will close down at the end of May, bringing to an end the country's first subscription-based online music service.

I think it's closing because the new model being employed by Napster elsewhere in the world - so unlimited on-demand streaming coupled with five MP3 downloads a month - won't work in Japan, where labels are still rather nervous about anything involving the distribution of digital rights management free music files. Those crazy Japanese folks, hey.

Actually, it seems Napster Japan struggled to get a number of labels on board at all, which made it hard for them to build market share in a territory where a la carte mobile music services dominate.

Napster is apparently planning a big relaunch of its UK service later in the year to coincide with the arrival of its parent company - US electronics retailer Best Buy - into the UK market.

As previously reported, Best Buy have been looking into entering the UK retail market for some time, and their arrival is now set to happen this Spring with three stores, one in Southampton, one near Dudley and one in Thurrock in Essex. The Napster relaunch would presumably involve an in-store presence at these new Best Buy shops.

As also previously reported, Napster last year repositioned its services to emphasise the Spotify-style unlimited streaming platform it offers subscribers. Although there is no free version of that service, those who do subscribe also get to download a number of MP3s for keeps as part of their subscription.

As previously commented, pursuing Ellis for conspiracy to defraud was always ambitious, given the slightly slapdash nature of the Oink operation in its early days, and the lack of any obvious deception, or the sort of all round shady behaviour required to prove fraud. The case for copyright infringement really was stronger.

Why the prosecution went for conspiracy to defraud isn't clear. It is the crime more traditional music pirates - those who bootleg CDs in their garage for example - are often successfully prosecuted for, so perhaps the piracy police felt they were on more familiar ground pressing those charges. However, while it's hard to believe anyone would set up a bootleg CD operation for anything but dishonest intent, it is entirely possible a geek would set up a file-sharing website in his bedroom just for fun. The dishonesty required for a fraud conviction is therefore much harder to prove in this case.

It's possible that prosecutors and the IFPI wanted a tougher penalty than a copyright infringement conviction was likely to deliver, preferably jail time, to make a big bold statement to other internet pirates, and a custodial sentence was more likely with conspiracy to defraud. It's also possible that at the start the authorities genuinely believed the Oink operation was a lot more organised and disciplined than it really was. It's easy to forget just how easy it is to cover up a shambolic operation with a half decent website.

It is also possible prosecutors feared they wouldn't have a case for copyright infringement, or at least not without taking the whole thing all the way to the UK's shiny new Supreme Court. As with the services that have featured in all the key file-sharing lawsuits of the last decade - from Napster to Grokster to Kazaa to The Pirate Bay - the Oink platform never actually hosted any of the infringing content itself. While Ellis had admitted to personally sharing unlicensed music files via his own community - which would constitute so called direct infringement - the operation of the website itself would not amount to such a thing.

By operating the Oink community Ellis would instead be liable for so called 'authorising infringement'. This is a tricky concept about which the UK's Copyright Act says very little. The last time the record industry tried to use the concept in the battle against music piracy - in a pre-internet case related to home-taping - it failed. Arguably precedents set in cases like Napster, Grokster and The Pirate Bay, which centred on a related though slightly different legal concept of contributory infringement, would be persuasive in any attempt to do Ellis for authorising infringement. The precedent in Kazaa even more so, because that was heard in the Australian jurisdiction which also recognises the English Law concept of authorising infringement. Though none of the foreign cases would actually be binding on an English court.

And the last time authorising infringement liabilities, with regards the provision of file-sharing services, were formally discussed, during the previously reported Gowers Review of intellectual property law in 2006, the BPI itself admitted that the outcome of any actual lawsuit on the matter would be uncertain. In their submission to Gowers they wrote: "The outcome of a case against a P2P provider in the UK remains unpredictable - obtaining a definitive judicial interpretation would likely involve pursuing proceedings all the way to the House of Lords. [Such proceedings] are likely to be costly, time-consuming and not without risk".

The BPI asked Gowers to recommend that the government provide some clarity on the liabilities of file-sharing service providers in the UK with regards copyright infringement, perhaps be expanding the section on authorising infringement in the Copyright Act. Gowers promptly refused. And not such clarification has been discussed as part of the Digital Economy Bill either. Personally, I'd say such clarification is as important as the three-strikes ballyhoo that is included in the DEB, possibly more so - in reality you'll never stop individuals file-sharing, but you could make it difficult for people to operate and profit from online services which make file-sharing easier.

The lack of any such clarification makes things difficult for the UK record industry. Friday's ruling did not actually say that you can operate an Oink style service without being guilty of copyright infringement, but many will interpret that it did.

Trying to very much reposition itself into the Spotify-style streaming music domain, Napster, one of the original legit digital music services, has launched a site for web developers providing the tools and APIs and whatnot to enable web service providers and portable device makers to integrate the Napster subscription-based on-demand music stream into their own products.

Although the digital kit website is free and open to all, those who develop their own Napster widgets will actually have to enter into a partnership deal to make the Napster streaming service actually available to their customers. Samsung are among the electronics companies known to be utilising Napster's new open access approach.

These developments come as two senior execs at the Best Buy-owned digital music outfit step down. Both CEO Chris Gorog and President Brad Duea are out the door. Neither will be replaced at the streamlined digital music firm, with existing COO Christopher Allen becoming the new top guy with the title of General Manager.

Napster UK have announced a new-fangled subscription service that recommunicates the company's various offers in the context of the 2009 digital music market - basically it's Spotify with free MP3s.

The new five pound a month offer provides access to Napster's online streaming service, which is in some ways much bigger than that offered by Spotify in that it has over 8 million tracks, several years worth of expert-created playlists and its own catalogue of live sessions. Subscribers will also get to download and keep five MP3s a month.

The service, similar in many ways to that which Sky will launch this Autumn, and to Ericsson's competes-with-Comes-With-Music package, is based on research that suggests people still want to own permanent copies of some tracks, but are happy with temporary access to most.

Crucially, Napster's new push moves away from its original primary service, which was DRMed Windows-based downloads that only played while a subscription was valid. That service was always horribly limited by the fact it only played on compliant Windows-based digital music players. The Microsoft DRM used was clunky and unpopular, so much so Microsoft themselves chose not to use it when they launched their own Zune player and store in the US. Ironically, though, Spotify's recently launched off-line service, for premium users, uses DRM that, while not clunky and unpopular, is based around the same principles.

Although the new Napster offer really competes with Spotify, We7 and the soon to launch Sky Songs, their press release goes to great lengths to point out the service's benefits over Apple's iTunes. That might be because Napster recognises Apple is still the biggest competitor in the digital music space, or because the company still hasn't quite got over the fact it was trounced by the IT giant during the first significant stages of the legit digital music market back in 2004.

Also of interest is that while Napster is undercutting Spotify by a fiver in terms of subscription rates (and even more if you give the free MP3s a monetary value), it hasn't chosen to compete with the relative newcomer by providing an extensive ad-funded free-to-use streaming music service. That may well be because Napster's last dabblings with the ad-funded model didn't go so well.

The lack of a free-to-use variation will make Napster's offer harder to market. That said, with its current owners Best Buy using its co-ownership of the Carphone Warehouse chain to push the new subscription package - free month-long trials will be distributed in store - as well as tie-ups with PC makers, such as the previously reported partnership with Dell, they might be more successful in reaching mainstream consumers than in the past.

Commenting on the new package, Napster's European VP Sales & Marketing Thorsten Schliesche said these words: "With this new service model, Napster once again reflects the needs of today's music consumers. We listened to our customers and developed a service that provides music lovers with a flexible, best-value service that allows them to tailor their digital music experience to their personal requirements. Whether users want to build on their own collection of tracks, discover new music or simply stream their favourite songs into their own space - Napster has worked hard to provide an environment where music lovers can create their own easy-to-use experience, all available under one fixed and best-value cost".

Following the news HP were pre-loading their laptops (in Asian territories) with membership to a Universal Music free download club, Dell have announced they are now pre-loading computers bought in the US with a Napster subscription. The musical laptops will come with a year's subscription to Napster, allowing unlimited streaming for twelve months plus 60 free permanent downloads.

The Napster-enabled laptops will initially be exclusively sold in Best Buy, the US retailer who now owns Napster, though will be sold via Dell's website from November.

The boss of UK record label trade body the BPI, Geoff Taylor, has said he regrets that the music industry wasn't quicker to embrace the opportunities offered by the internet and the arrival of music distribution services like Napster more or less exactly ten years ago; but argues that those who say the record industry would definitely have been better off had they only collaborated with the first big P2P platform ignore the major hurdles that would have had to be crossed to enable such a collaboration.

Writing a piece for the BBC on the tenth anniversary of the original Napster, Taylor says: "Many critics have argued that the music industry could have avoided some of the problems it faces today if we had embraced Napster rather than fighting it. That's probably true, and I, for one, regret that we weren't faster in figuring out how to create a sustainable model for music on the internet. But this view also overlooks the formidable hurdles we faced in 1999".

Hurdles Taylor references include the simple bureaucratic headache of licensing millions of copyrights, many of which were owned by different people, or subject to different contracts or laws, in different territories, not the mention the (still not really solved) challenge of how to track P2P distribution and share revenues between labels, publishers, artists and songwriters. DRM, he says, was still considered a priority for record labels at the time, and that too presented all sorts of challenges that made simply doing a deal with Napster tricky, even if there had been a will to do such a deal.

He continued: "In 1999 Napster developed a great digital service, but did so at the expense of music, while the music business protected music at the expense of progressing online digital services. [Napster founder] Shawn Fanning and his P2P followers didn't worry about any of those things, and weren't prepared to pay fair royalties or to partner in a business model that could sustain investment in new music. Ten years on, it's interesting watching other creative sectors struggling with similar issues. In the meantime, the record industry has gone through a transformation".

Taylor observes how ten years on the record industry is slowly catching up, offering all sorts of compelling, engaging and affordable digital music services, from a la carte download stores like iTunes and Amazon MP3, to subscription based services like Nokia Comes With Music, through to ad-funded free streaming platforms like Spotify and We7.

But, he adds, rogue P2P services like the original Napster are still out there, and they don't have the excuse used by Fanning et al that digital music fans have to use unlicensed platforms because no legit services exist. Lots of legit services exist, he argues, and the rogue P2P and other BitTorrent supporting services are making it harder for those services to succeed by offering illegal free alternatives.

He continues: "It is true that some people use P2P for music discovery and spend more on music as a result, but in the aggregate they are heavily outweighed by the number of people whose downloading substitutes for purchases. If the reverse were true, our business would be booming and not contracting right now. There is simply no getting around the fact that billions of illegal free downloads of music every year in the UK mean that significantly less money is coming into the music ecosystem. Music companies invest more money into [research and development (ie new talent)] than any other similar business - over 20% of revenue. But illegal downloading means that artists are not getting paid for their work, and there is a direct knock-on effect on the number of new bands that music companies can sign and support".

Taylor's conclusion is, of course, obvious - this, he says, is why people, and especially politicians, should support the campaign by the record industry, and an increasing number of other content sectors, to crack down on file-sharing, which in the BPI's eye basically means forcing the internet service providers to play a more proactive role in tackling those naughty file-sharers.

The opinion piece is, in my humble opinion, a little unfair on Napster, who never set out to destroy the basic concepts of copyright (as opposed, say, to The Pirate Bay), and who were actively partnering with BMG to find a legit model before BMG's competitors sued the P2P firm out of business. Something which the idiots running EMI, Universal, Sony and Warner at the time genuinely believed was going to be the solution to the P2P problem; in awe, as they were, of their smart suited but ageing lawyers, and such was their contempt for the scruffy kids who were busy developing the next P2P innovation before the majors' had even printed out their Napster cease and desist.

And had a slightly less scruffy (but still not lawyer-style suited) tech man called Steve Jobs not stepped in four years later, there's every chance said idiots would have been relying on the advice of said lawyers to this day, as their industry disappeared down a plug hole. But hey, that's all ancient history, and Taylor's thoughts on the current P2P issue are definitely worth a read.

You can read his full article here.