Napster effect may extend beyond music

For millions of file-swapping teens, the Napster case is about continued access to free music. For the record companies, the ability to control the distribution of copyrighted content is at stake.
Written by Sara Robinson, Contributor

For millions of file-swapping teens, the Napster case is about continued access to free music. For the record companies, the ability to control the distribution of copyrighted content is at stake. But several technology trade organizations argued last week that much broader issues are in play, issues that may affect companies ranging from Internet service providers and search engines to electronics manufacturers.

In two "friend-of-the-court" briefs, industry groups argued that federal Judge Marilyn Patel misinterpreted copyright laws and legal precedents in ways that could be harmful to the technology industry as a whole.

In one brief, the Consumer Electronics Association, which includes companies such as 3Com, America Online, RealNetworks and Sony Electronics, joined forces with the Computer & Communications Industry Association and others to argue that Patel misinterpreted a landmark case known as Sony of America vs. Universal City Studios.

In that case, concerning the potential use of the Sony Betamax videocassette recorder for pirating movies, the Supreme Court found a manufacturer isn't liable for selling a device that could be used for copyright infringement, but that also had "substantial noninfringing uses."

In her decision late last month, Patel ruled the Sony case did not apply to Napster because the service has a primary role in facilitating infringements, and because the majority of the files currently traded on the service are copyrighted.

In their brief, the CEA and others noted that by Patel's own determination, 13 percent of the music on the Napster index is not copyrighted. Moreover, they said, she incorrectly based her determination only on the current usage of the system, while the Sony decision made clear that future potential uses should be taken into account.

"We are concerned that the court is interpreting existing precedents in a way that would potentially chill the development of new technologies," said Jason M. Mahler, vice president and general counsel at the CCIA. "In the beginning, a large portion of the Internet was porn sites. Some people might have made the argument that the Internet was primarily used for porn" and shut it down on that basis, he added.

In a second neutral brief, the CCIA, which includes companies such as AT&T, Nortel Networks, Verizon Communications and Yahoo!, was joined by organizations including the U.S. Internet Industry Association and the U.S. Telecom Association in arguing that Patel misinterpreted a key section of the Digital Millennium Copyright Act (DMCA). The section of the 1998 law limits the liability of "service providers" - such as Internet service providers, portals, auction facilitators, site operators and other providers of Internet-related services - for copyright infringement arising out of the conduct of users and third parties.

The trade organizations argued that Congress placed primary responsibility for identifying specific infringing works on the copyright owner, not on the service provider. They said service providers are required to respond only to so-called "red flags"; for instance, a directory cannot link to an obvious piracy site, and a search engine must remove a link to a piracy site once it has been identified as such by a copyright owner.

In her decision, however, Patel argued only that Napster had "reason to know" infringement was taking place on its service and thus had the duty to stop it.

The brief contended that regardless of whether Napster meets the "red flag" criteria, Patel incorrectly applied a weaker standard in her ruling and that the industry had specifically prevailed on Congress to set a higher standard than "reason to know" when the DMCA was negotiated. The 9th U.S. Circuit Court of Appeals said it will hear opening arguments in the Napster case in the first week of October.

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