Napster decision a copyright, not a First Amendment, issue

Tuesday, February 13, 2001

(Editor's note: The Associated Press reported Sept. 24 that Napster had tentatively settled a lawsuit filed by the National Music Publishers' Association, agreeing to pay $26 million for past unauthorized use of music and $10 million as a down payment on future royalties. The deal also sets up terms under which songwriters and music publishers can license music to Napster's upcoming fee-based service, expected to be launched by the end of the year.)

A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled yesterday that Napster must somehow stop the millions of people who use it as a clearinghouse to swap copyrighted music without charge and without restriction.

The panel sent the case back to a trial judge, asking her to rewrite an injunction so it allows Napster to survive if it is able to patrol its network for copyright infringement — something its own lawyers have said is virtually impossible.

Though Napster vows to fight the appeals panel's ruling, and any subsequent new injunction, the company's music free-for-all may be doomed.

In the wake of yesterday's ruling, the First Amendment Center's Executive Director Ken Paulson provides background on Napster, the First Amendment, copyright and fair use.

Q. Did the 9th Circuit panel's ruling that Napster is trading in copyrighted music undercut the First Amendment?

A. Not at all. The First Amendment guarantees freedom of music — not free music.

The First Amendment prevents government from banning Eminem's music, but there's no corollary right to widely distribute his music without paying for it.

Q. But aren't there legitimate concerns about using copyrights to limit the dissemination of information?

A. Yes. As copyright holders aggressively pursue their property rights, there's a real risk that the marketplace of ideas could be affected. Protecting the fair-use doctrine and ensuring that copyrighted material can be used for educational and nonprofit purposes is critical in maintaining the free flow of ideas.

Q. Why isn't copying from Napster considered fair use under the federal copyright law?

A. Although Napster users are generally not downloading content for profit, they are capturing songs, the entire work product of composers and performers. The 9th Circuit didn't embrace Napster's argument that its users are downloading MP3 files in order to sample the music before making a purchase. The court contrasted the free promotional downloads available from record companies and the “full free and permanent copy of the recording” provided by Napster.

The whole concept of copyright was designed to encourage the creative process by providing some monetary incentive. If an author or songwriter can have his or her work pirated without compensation, the creative process is short-circuited.

Q. Why is it that when I tape a television show at home, I'm able to watch it at a later time without paying a copyright holder? Why is downloading music to my MP3 player different?

A. Napster made a similar argument before the appeals panel. The judges distinguished Napster from video recorders by noting that VCR users are simply recording a program for their later personal use. Napster users, in contrast, are distributing songs to literally millions of users, well beyond the walls of their own homes.

Q. Does this mean an end to Napster-like technology?

A. No. There's a bright future for file sharing. The technology is extremely viable; the only question is how can file swapping be reconciled with copyright law?

Napster was the first highly effective peer-to-peer file distribution system, but it won't be the last. There's an entire generation that feels perfectly comfortable with downloading the creative work of others free of charge. In the long run, the only way that will change is through a highly effective and highly reliable commercial alternative.

The court's opinion won't change public opinion on America's campuses; young people believe they have the right to freely distributed music. Even with the courts' assistance, this will be an uphill battle for the recording industry.

— The Associated Press contributed to this report.

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