- The Washington Times - Tuesday, October 24, 2000

Some lawsuits are as inevitable as a high noon shoot-out in a spaghetti western. Such is the case with Napster Inc. vs. The Recording Industry Association of America (RIAA). Napster is a computer software application which facilitates, over the Internet, the transfer of music files, many of which are copyrighted. The RIAA is a trade group representing the big record companies, who own many of these copyrights. Within the next few weeks, the Ninth U.S. Circuit Court of Appeals is expected to rule whether a temporary injunction that would effectively shut down the Napster network should be imposed pending trial. But don't be too quick to assume that Napster is the black-clad villain of this showdown. In the Internet age, black is often white.
Copyright law finds its origin in Article I, Sec. 8 of the U.S. Constitution, which provides that: "The Congress shall have Power … to Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Copyrights protect the incentive to create so that the public will benefit from inventions and arts.
That protection, however, is limited. The same constitutional principle protects the creators of technologies which may threaten the ability of copyright holders to control the use of their creations as long as such a technology is capable of a significant use other than copyright infringement. These innovators must also have an incentive to create. This holds especially true with Internet technologies, which capitalize on the free flow of information and content.
Napster is a prime example. Contrary to the characterizations of the RIAA, Napster is not an online warehouse of stolen goods. The RIAA's suit alleges that Napster is guilty of contributory infringement it has never even been suggested that the company participates directly in copyright infringement or piracy. No music files are stored on Napster's servers, nor does Napster allow one to copy music from a compact disc. Napster may provide the information, but once you find a user who has the file(s) you seek, the transfer takes place strictly between the computers of two individual users.
Napster will find any files in the MP3 format stored on the hard drives of users logged on to its network. It cannot discriminate between files that copyright holders have authorized for trading and those they have not. Around 20 to 30 percent of the files listed a substantial amount given Napster's estimated 35 million users have been authorized or are not copyright protected. One can find much music from new, unsigned artists, authorized live recordings even family recordings of baby speaking her first words.
It is not even clear that all trading of copyrighted files over the Internet constitutes infringement. According to the Audio Home Recording Act, copying music from cassettes or compact disc to another medium for personal use or to give to a friend qualifies as private use and is legal. Napster users often download songs they already own in a different format a similar transfer of media. In addition, through its online network, Napster facilitates communication between users, who often make friends with those who have similar musical tastes. While many Napster users' file-trading would not qualify under AHRA as private use, many, indeed, would.
However, assuming that, as the district court feebly suggested in July, a computer hard drive is not a "device" akin to a tape deck, and thus not covered under the AHRA, the 1984 Supreme Court ruling in Sony vs. Universal Studios clearly protects technologies that may be used for both infringing and non-infringing purposes. Universal Studios charged that Sony, as a technology provider, was liable for infringement of copyrighted television programs by consumers using the Sony Betamax VCR. The Supreme Court ruled in favor of Sony, setting down a clear and objective standard: A technology provider cannot be held liable for infringement as long as its product is capable, even potentially, of one substantial non-infringing use.
In the Napster case, however, the district court has exhibited a dangerous misreading of the Betamax ruling, reversing the emphasis from capability for non-infringing use to whether or not the current primary use is infringement. If this interpretation of Betamax endures in the circuit court's ruling, Napster would effectively be closed for business, since it is primarily used at this time to find unauthorized copyrighted material.
If the court makes its final ruling on the same grounds, it would set a precariously subjective standard for other new technologies. Any technology company whose product could be accused of facilitating infringement would be fair game for threats of litigation, scaring away potential investment. Copyright holders, without even going to court, could use this precedent to intimidate innovators into surrendering such technologies. In effect, a copyright holder's control would be extended over technologies that could contribute to the infringement of their copyright. Internet service providers, for example, could be faced with the impossible task of policing every one of their customers. More often, however, innovators would be discouraged and innovation stifled.
For this reason, the district court's misreading of the Betamax ruling has many in the technology industry scared. The Digital Media Association, which represents companies like Yahoo and AOL, has filed briefs in the Napster case urging that the court reconsider this interpretation. Technologies should not be banned before they have the chance to fully develop a legitimate use. The Supreme Court saw this clearly in the Betamax case and placed its emphasis on the technology's capacity to be used legitimately, not how it is used in its fetal stages. Ruling against Napster based upon how it is currently used would create a serious deterrent for burgeoning new technologies.
Rather than set such a precedent, the court should respect the underlying spirit of the copyright law to protect incentives and fuel innovation.

Spencer Lewerenz is letters editor of The Washington Times.

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