Analysis of 9th Circuit Court of Appeals, Napster (02/12/2001)
Napster Asked to Turn Off Music Trading
Napster Inc began in May 1999 as an internet based file sharing service founded by Shawn Fanning and Sean Parker. The enterprise ensued from an idea of Shawn, a Northeastern University student, to share music by way of internet. MP3 compression makes audio files sufficiently small that up and down loading at modem speed is practical. The music is not "played" but rather transfered as data at slower than real time speed. The receipient must have special player equipment or computer software to be able to later playback the music file by decoding the MP3 data. People who have digitized music recordings make lists (links) available through the bulletin-board-like Napster service so that others can find files to download. The service is banned on numerous colleges because it is so popular with students making music downloads that it can clog a school's server network. As many as 1.5 million users may be logged-on to Napster at a given time.
Napster did not inspect or regulate the postings of music sources, and many if not all were digitized from copyrighted phonorecords. However this was not considered necessary in that Napster was merely acting as a clearing house intended to facilitate legal music transfers. In the 1984 Betamax case, the US Supreme Court held that equipment manufacturers were not to be held liable for possible consequential copyright violation perpertrated by users. Users of the service claimed to be making peer-to-peer trades, a long tolorated practice in the exchange of personally recorded audio cassette tapes and videotapes of television programs.
In April, performing group Metallica and Dr Dre file suit for infringement. The digital recording act provides some relief for performers in cases where digital recordings are made that can precisely represent a near perfect replication of an original performance. However, even an unsophisticated listner can easily discern an MP3 as inferior in comparison vis the source material. Similarly, complaints from composers are not substantiated in that Napster did not copy the music in an instructional form (textual or midi file) nor did it create a performance of music by transmission.
However the suit brought by five recording labels (one of which was ironically Sony, the defendant in the Betamax case) for phonocopy protection was found to have merit, and the court ordered an injunction be re-written against Napster to prevent damage to recording companies. Peer-to-peer trading typically involves analog media that is "home recorded" and not taken directly from commerical CD or DVD products. Traditional examples include recordings taken at live band performances or off-air videotapes of telecast programs. Further, the exemption of copyright allowing peer-to-peer trading is not an established legal principle, but is a tolorated practice only in that it is difficult to make a case of substantive financial damage to rightsholders, which is the essential purpose of copyright. Where 250 million songs have been down loaded from Napster in one weekend, the entire recording industry has suffered a presumptive case of revenue loss. Of course this large volume of "business" is also an attraction to recording labels, if it means they could collect royalty fees. Bertelsmann AG, parent of BMG music has made agreements with Napster to find a subscription based method of internet distribution.
The appeals court decision requires that the injunction against Napster be narrowed in focus to limit its protection to copyrighted phonorecord sources only and must permit non-injurious music trading to continue. And the links which permit public users to find archival MP3 files of copyrighted music for downloading must be removed immediately
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If not free, here is at least a legal method to get CD's at less than original rip-off prices.
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