Napster case makes strange bedfellows

The digital music controversy has created a crazy quilt of allies, all struggling to be heard in advance of a judicial ruling on Napster
Written by Lisa M. Bowman, Contributor

On the surface, the Napster lawsuit might seem like a tale about a bunch of ragtag college students trying to stick it to the record industry.

In fact, the case raises a myriad of new questions about the nature of copyright in the digital age. And dozens of interest groups, from athletes to doctors to free speech advocates, have filed briefs that seek to define the issues to the appeals court weighing the future of Napster.

"It's a fascinating, mixed cast of characters, which I think indicates how much is at stake," said American University law professor Peter Jaszi, an organizer for the Digital Future Coalition, a group representing librarians and historians which has signed onto one of the briefs.

Librarians are part of a constituency, which includes ACLU members, some doctors, ISPs and consumer electronics manufacturers, who fear a ruling that closes Napster would have a grave effect on new technology companies and consumers.

On the other side of the debate are sundry software makers, photographers, the National Basketball Association, the Commissioner of Baseball, a doctor's group -- even the White House -- all of whom argue that the outcome of the Napster case could open the door to widespread copyright infringement.

On October 2, the 9th Circuit Court of Appeals will hold a hearing into whether to let stand a lower court ruling clamping down on Napster. In July, US District Judge Marilyn Hall Patel ordered Napster to stop allowing the trading of any music copyrighted by members of the Recording Industry Association of America, a major music label trade group that is suing Napster.

Attorneys for Napster appealed the ruling to a higher court, which temporarily delayed the ban while considering the issue.

In the meantime, anyone who feels threatened by the outcome of the case is staking a claim.

"The music industry believes that if Napster continues, they're going to lose control of everything they have that's distributed digitally, and it's a chance for the libraries and a lot of academics to attack [new copyright laws] and argue that Napster is such a cool technology it shouldn't be shut down," said Mark Radcliffe, an attorney with Gray Carey Ware & Friedenrich who's helping other peer-to-peer companies avoid Napster's legal woes.

Perhaps one of the best examples of the tangled, competing interests in the Napster debate is Sony, which has different business units on opposite sides of the case.

The company's Sony Music Entertainment is a plaintiff in the suit against Napster, which claims the company is aiding the theft of copyrighted works by letting people trade music for free.

But Sony's also a member of the Consumer Electronics Association, which along with the Digital Future Coalition, filed a brief saying Patel's ruling could expand copyright law in unprecedented ways to the detriment of new technologies.

One of the most interesting arguments comes from the ACLU, which says Patel's ruling could thwart free speech on the Internet.

Essentially, the ACLU argues that the act of swapping files is free speech, and Judge Patel's ruling violates the First Amendment because it could constrain people from sharing information. "The court declined to attach any significance to the fact that the injunction, as written, will inevitably suppress speech that even plaintiffs concede is non-infringing," the brief states.

For example, ACLU attorney Ann Brick said the ruling could prevent actions like sharing book excerpts among members of an online book club for discussion purposes. "When you're dealing with new technology, you want to be careful and make sure you get it right," Brick said in explaining the ACLU's decision to jump into the case.

Basically Napster raises several questions about how intellectual property laws should apply in the digital age.

One of those questions centers around whether the 1984 Sony Betamax case applies here. The Sony decision says it's legal to use a product that could violate copyrights, provided the product also has "substantial non-infringing uses." That case dealt specifically with the home video recorder, but it has been applied to other technologies, and Napster attorneys are arguing the same concept should apply to its file-swapping service because it can do things like promote artists who've not yet been signed by a record label.

Napster also raises questions about the scope of the Audio Home Recording Act, a 1992 law that allows people to record copyrighted material for personal, or fair, use, such as copying a CD you own onto a tape to play in the car. Napster attorneys have argued that Napster facilitates fair use, an assertion the record companies have, so far, successfully shot down.

The Napster case also is one of the first suits to test the Digital Millenium Copyright Act, which was passed by Congress in 1998, and gives expanded rights to copyright holders in the digital age.

Many of the briefs address those issues, though the filings don't necessarily come from groups that traditionally pick sides in fights over technology -- an indication that the new Internet laws will touch virtually every sector of society.

"One or two cases can have a completely out-of-control effect on the development of the law and the way people behave," Curtis Karnow, an attorney with Sonnenschein, Nath & Rosenthal, said.

For example, the NBA, the Commissioner of Baseball and the American Society of Media Photographers are worried that a pro-Napster ruling could cause them to lose control of material including photos and video if they're sent unchecked around the Internet. They've signed onto a brief with the Motion Picture Association of America, which represents major movie companies.

In yet another brief, a group of doctors sided with Napster, saying the decision could quell online critiques. "What if the owner of Ritalin asserted its intellectual property rights, and demanded that Yahoo only provide authorised links on Ritalin?" the Association of American Physicians and Surgeons argued in its brief. "The outcome would be that criticism of the use of Ritalin would be effectively silenced."

Even the Clinton Administration and the US Copyright office joined the fracas, arguing against Napster. They filed a brief last week saying that the Audio Home Recording Act was a carefully crafted deal between the copyright holders and consumers, an agreement that specifically left out computers. They argue that because copyright holders don't get anything in return for the Napster community's use of their music, the Act does not apply here.

However, Ralph Oman, former register of copyrights for the US, filed a separate brief questioning Patel's decision. He said it needed to be modified because it was overly broad and it's technically impossible for Napster to distinguish between infringing and non-infringing songs being traded through its service.

Technology companies are having trouble presenting a united front when it comes to Napster. The Business Software Alliance, a group that spends most of its time cracking down on piracy, has praised Patel's ruling. The BSA, which represents companies such as Apple and Adobe Systems, said that although peer-to-peer technology is promising, Napster's use of it breaks the law because "its primary business strategy depends upon the unauthorised use of copyrighted music" -- a concept that exempts it from Sony.

Judge Patel's decision has triggered a sharp controversy. Proponents say it was the right thing to do; opponents say it could derail the New Economy.

Meanwhile, other technology companies argue that Patel's decision could bring the innovative culture that's spawned the new economy to a grinding halt. The Digital Media Association, which represents companies such as Real Networks and America Online, says the Sony decision should apply. If not, companies will stop developing products if there's any chance someone might use them to infringe copyrights, even if they can be used in other ways.

Other groups including a coalition representing telecommunications and Internent firms made up of the NetCoalition.com, the Computer & Communication Industry Association and others said Patel's decisions would force members to constantly patrol networks for illegal activity, leaving them little time to run their business. Taken to its extreme, the groups argue, Patel's decision could criminalize things like search engines.

Then there's the Digital Future Coalition -- the group of librarians, historians and educators -- which has formed an unlikely alliance with the CEA, which represents makers of digital gadgets and gizmos. Both groups say Patel's ruling could threaten the future of new product development and the exchange of information.

"Basically what the opinion says is: if you've got a new Web-based technology and if at the point at which it's rolled out, more people misuse it than use it well, we can shut it down," DFC's Jaszi said.

The briefs submitted by such groups provide guidance for the judges while they consider the case. During the October 2 hearing, attorneys for Napster and the RIAA will present oral arguments. The judges can rule anytime after that.

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