the day the music dies: opinions on the napster injunction

July, 2000.
By Molly E. Holzschlag. (Link to original article.)

Thursday's motion hearing lasted two hours. At its close, U.S. Federal District Court Judge Marylin Hall Patel ordered a preliminary injunction against Napster which would have essentially forced it to close down its doors by Friday, midnight. The circuit court, who will hear the appeal, has awarded Napster a stay of the injunction.This means Napster's doors are open until the appeal is heard.

While Patel's judicial calendar is clear for the weekend, the press is foaming at the mouth for information and details about this case, a hot topic now made hotter by these events.

Web Review sent some emails and made phone calls to a variety of people and asked them about the injunction against Napster. We offer up their opinions for what they are—opinions—which may or may not help you form (or change) your own. We've also included a sidebar of links so that you can read more about the Napster issue.

Jon sobel, founder, society of independent music artists

Reaction in the independent artist community to the injunction against Napster has been decidedly mixed.

Most independent artists view the RIAA, which represents the major labels, as an enemy. After all, it is comprised of those labels who for decades have choked off music distribution channels to all but their own acts. Internet music distribution has already been a great boon to independent artists, and on principle they don't want to see the new channels cut off, especially by the old enemy.

But because artists have no control over Napster trading, many feel ambivalently about it. Some see it as a net benefit for their music, others do not. It's a truism of capitalism that what's best for an industry as a whole may not be best for an individual company.

Napster-style distribution may benefit indies as a group by exposing the listening public to music that doesn't have the mighty major-label promotion machine behind it. But many individual artists see it as a threat to their copyrights and ability to make a living. Loss of a few CD sales because of Napster may mean little to a popular major label act like Limp Bizkit, but is a significant setback to an up-and-comer who is already facing a public that has come to expect indie music to be free.

So even the many indies who don't like the idea of uncontrolled music trading hesitate to cheer a ruling that favors the RIAA, seeing it as a sign that the old enemy's clout remains strong enough to threaten the gains made by indies on the Internet. We feel like observers on the eve of a great battle, hoping to somehow sway the outcome in our favor but not knowing which powerful army to back.

Jon Sobel is the founder of the Society of Independent Musical Artists and an advocate for independent musician's rights.

Claire wudowsky, intellectual property attorney

There is no question that copyright infringement occurs when a user of Napster copies and then trades a copyrighted song. Both the person making the copy and the person downloading the copy is infringing on the copyright owner's copyright rights.

The only way someone can legally trade music protected by copyright is to loan or give away his or her CD (or album). The person doing the "trading" cannot keep a copy of the music. When someone "trades" music on Napster—he or she makes a copy of the music and "trades" the copy.

This is classic copyright infringement. You cannot buy a book and make photocopies of all the pages of the book and then give the copies to a third party—that is clearly copyright infringement. Similarly, the copying of music and offering it to "trade" is no different. Just because the Internet makes copying easy does not mean the Internet makes it all right.

The question in the Napster case is whether or not Napster is committing contributory and vicarious copyright infringement; in other words, is Napster facilitating and encouraging copyright infringement?

Napster originally sought refuge under the Digital Millennium Copyright Act of 1998, claiming that its system of servers functioned as a "mere conduit" for information and was thus exempt from copyright infringement.

However, in an earlier decision Judge Patel found that Napster did not meet the requirements to claim safe harbor under this act. Among other things, this act imposes a requirement that the service provider has reasonably implemented a policy for terminating repeat infringers. Clearly, Napster has not met this requirement.

Napster's strongest defense has its basis in the Supreme Court's opinion in SONY CORP. v. UNIVERSAL CITY STUDIOS, INC. wherein the Court found that Sony, a Video Tape Recorder (VTR) manufacturer was not infringing Universal's copyrights in certain television programs. The Court found that "supplying the 'means' to accomplish an infringing activity and encouraging that activity through advertisement was not sufficient to establish liability for copyright infringement because Sony was not in a position to control the use of copyrighted works by others and Sony had not authorized the use without permission from the copyright owner."

The Court further noted "that the only contact between petitioners and the users of the VTR's occurred at the moment of sale." Most importantly, the Court stated that "[T]he sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes, or, indeed, is merely capable of substantial noninfringing uses."

In other words, to be protected under this case, Napster must be able to show that its product is widely used for legitimate, unobjectionable purposes, or is merely capable of substantial noninfringing uses."

Unfortunately for Napster, it seems that its primary use is for infringing uses, and thus, will not find relief under this theory.

People have to remember that the laws in the "real world" apply to the online world. Copyright infringement cannot be allowed online just because it is "easy" to do. If someone parks her Porsche in front of my house and leaves the keys in the ignition, that doesn't mean I am allowed to go and take it, even if it would be easy to do. Moreover, if I believe I deserve a Porsche, but I cannot afford one—that doesn't mean I am allowed to steal one.

Similarly, if the Internet makes breaking the law easy, that doesn't mean the law should be changed. The people who have been using Napster have been stealing the Intellectual Property of the artists who own the copyrights to the songs that Napster makes accessible. Furthermore, there currently does not seem to be any legitimate uses for Napster. It would seem that maybe the solution would be to treat Napster like a radio station. Napster would pay royalties for the right to make copyrighted material available to its audience.

Claire Wudowsky, Esq. is an intellectual property attorney who has practiced in the areas of trademark, copyright, unfair competition, and online law since 1992. She can be reached at claireleah@law.com.

Linus kafka, government attorney

The press is talking about law and technology. The one thing that's missing from that equation is reality. If you look at history, when there's an uncontrollable situation, the law—slow as it is—often steps up to ratify the chaos rather than control it. Or it ends up ignoring the situation.

Even if the decision goes against Napster in the end, the reality is the law can't control the free and open access of digital information.

By way of analogy, Lenny Bruce was repeatedly arrested for profanity and obscenity and even went broke defending himself from laws which are still on the books. Today he'd play city hall. This is in our lifetime—what he said then, you can now hear on TV.

The law couldn't control our language, so it relaxed its regulation.

Closer to the context of the Internet, think about the decimation of our right to privacy. A few years ago, I believe it was the president of Sun Microsystems who said: "the right to privacy is dead, get over it." Well that was quite a shock! Is the right to privacy any less fundamental than copyright? Where was the legal and media frenzy then? We've heard very little about this, and the government has been totally ineffective in preventing privacy violations by major Web players such as RealAudio. Illegal copying of music has always been a risk. Technology doesn't change the risk of pirating, it only changes the process and magnitude of distribution.

But Napster is going down because they're visible. There are other technologies that will do this anonymously—regardless of what the law says. This is done in the same way as large corporations continue to invade our privacy technologically, without effective legal controls.

The reason we're subject to a media frenzy on this issue is because now the little guy is taking it out of the big guy's pocket rather than the other way around.

I wouldn't say that what Napster is doing is legal, nor would I condone illegal acts, but with regards to the reality of this situation and with apologies to that CEO, the right to control distribution is dead. Get over it.

Linus Kafka is a government attorney in Tucson, AZ. He has graduate degrees in history and law and prior to government practice he consulted for Internet companies.

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Napster links

This is the 'dummies' version of Wednesday Jul 26's legal bonanza. As pure and unadulterated as journalism gets.

Nothing to celebrate.

Salon's Scott Rosenberg looks at how the RIAA's victory over Napster is the final nail in the coffin for the record industry. He asserts that community-driven projects like Opennap and Napigator will make 'music sharing,' to use the popular euphemism, impossible to regulate.

Hypocrisy rules ok?.

This interesting piece from the Wall Street Journal looks at the hypocrisy behind Napster's stance on intellectual property. They're willing to make music freely available, so why won't they do the same with their code?

A war already lost.

Steve McCannell opines that what Napster enables users to do may be wrong, and that the only way to salvage the online music industry is to adopt formats like SDMI. And that, he argues, must be done at a reasonable price.

Love thy napster.

This is a transcript of Courtney Love's address to the Digital Hollywood online entertainment conference, given in New York on May 16.

Retail therapy for users.

A report published in February by the Gartner Group reveals that Napster users purchased an average of three more CDs in a six-month period, than nonusers.

It's theft.

Mike Langberg spouts his opinion on the morality of what Napster does. Expounding the need for a settlement, he's obdurate in his criticism of the way that the San Mateo-based firm has ignored the supposed sanctity of copyrighted material.

Playing capitol hill.

Earlier in the month Metallica drummer Lars Ulrich gave evidence to the Senate Judiciary Committee. He was joined by guitarist Roger McGuinn of the Byrds, MP3.com CEO Michael Robertson, and Napster CEO Hank Barry.

The blue and white corner.

This is Napster's home site where CEO and lawyer Hank Barry inveighs against the evil music corporations.

And the devil's lair?.

The home of the Recording Industry Association of America where, along with curious chums-in-crime, Metallica, they've been on the Napster warpath.

Contributed by JoshSmith.