The Napster Decision: What's It All About?

The quick take: If the appeals court's decision foreshadows how the trial will pan out, it's certainly bad news for Napster, but it's equally bad news for consumers, Internet service providers, and, ultimately, the public enthusiasm for musical expression that the Internet has done so much to foster.
THE TRIAL: WHAT'S AT STAKE

The appeals court's decision isn't the end of the Napster case, unless Napster elects to settle (and the plaintiffs agree). If there's a trial, it will decide a number of issues of historic importance, including the following:

<il>Does the Audio Home Recording Act (AHRA) apply to computers? The appeals court affirmed the lower court's rejection of the AHRA's applicability, claiming a computer with an associated hard drive does not have, as its primary purpose, the creation of digital audio recordings. In my opinion, this conclusion is not only wrong, but dangerous. Digital audio and computer devices are converging and will shortly become all but indistinguishable. Growing numbers of computer users are creating dedicated computer systems for their automobiles and home theater systems. Will the Napster ruling mean the public will lose the AHRA's protections when all digital audio devices are indistinguishable from computers?<il>Must ISPs police their systems? Seeking protection under the DMCA, Napster sought refuge from contributory infringement liability by claiming it's an ISP, and, therefore, can be held liable only for infringing works it did not remove after receiving an explicit request to do so. The plaintiffs argue that Napster isn't an ISP--which means Napster would be liable even if the company was never informed about the presence of infringing works on its systems. The appeals court appears to agree with Napster that the service is part of an Internet service provider, as defined by the DMCA. However, the appeals court also argues that, after notification, Napster should have policed its systems to make sure that no additional copies of the specifically cited infringing materials reappear in the future. In my opinion, this conclusion is very dangerous, because it reintroduces ISP liability through the back door. It is tantamount to saying that, once a copyright holder has notified an ISP that an infringing work is present on the ISP's systems, the ISP must police its systems zealously to ensure no additional copies of the work appear in the future, even if they are placed there by a completely different user. If this position is sustained, it will force ISPs to expend enormous amounts of time, energy and resources on policing their systems for infringing material, and could cause irreparable damage to the growth of the Internet as a public communications medium.

MY TAKE: THIS IS STUPIDITY, WRIT LARGE

Motion picture industry executives should thank their lucky stars that Universal failed in its quest to criminalize the possession of video cassette recorders (VCRs). Universal claimed the VCR would ruin the motion picture industry: theaters would close and precious little money would be available for new feature films. But it didn't happen that way. The years since the VCR's introduction have witnessed an explosion of interest in movies. New theaters are being built everywhere. Recently, videocassette sales surpassed theater receipts as the single largest source of the movie industry's income.

In the Napster case, recording industry executives are trying to shoot themselves in precisely the same way movie executives once did, and for precisely the same reason: They can't imagine giving up near-total control of the distribution medium for the works they've extorted from undercompensated artists. Although there's new evidence Napster is fueling an explosion of interest in music, and a concomitant explosion in CD sales, recording industry executives would prefer to push Napster out of the way so they, and they alone, can control the distribution of digitized music via the Internet. If they succeed, they'll surely try to impose distribution technologies that will invade user privacy, eliminate the last vestiges of fair use and generate more ill will among consumers. They could very well succeed in killing off the very Internet phenomena that have made music so intensely interesting lately.

Postscript

The Napster case plaintiffs are A&M Records, Geffen Records, Interscope Records, Sony Music Entertainment, MCA Records, Atlantic Recording Corp., Island Records, Motown Record Co. and Capital Records. You can read the decision at http://news.findlaw.com/cnn/docs/napster/napsterop0212.html.

Bryan Pfaffenberger (http://www.people.virginia.edu/~bp/) is Associate Professor of Technology, Culture and Communication at the University of Virginia, Charlottesville, and a UNIX (subsequently Linux) user since the mid-1980s. His opinions do not necessarily express those of Linux Journal.

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