- The Washington Times - Monday, March 4, 2002

The legal dispute between Napster and the music industry raised complicated issues that have yet to be fully resolved.
Napster's free service, shut down by the Recording Industry Association of America (RIAA), allowed anyone with a modem to download almost any music from the Internet.
Napster didn't actually have the music. It had central computers that knew where to find music on the computers of people using the service. If I wanted "Jailhouse Rock" and you had it on your hard drive and were online, Napster would tell me, and I'd get it directly, by computer, from you.
Napster was wildly popular. It worked. It was easy to use. You could easily find 10,000 people online at once, gobbling music. It drove the music industry crazy. It held the copyrights, and it wasn't making any money.
Many people say, sure, it was nice, but it was still stealing. This is less clear than it might seem. For example, many have said that it is legal to use the cassette deck on your boom box to record radio music for personal use on magnetic tape. Why, they ask, is it not legal to record Internet music on a magnetic disk?
In the October 2000 issue of Wired magazine, David Boies, then Napster's lawyer, made the case for allowing Napster to continue. Below, is what he and others have said. The arguments still hold.
(Note: I'm a non-lawyer condensing complex arguments from various sources. For the definitive version, go to www.wired.com and search on David Boies. The ideas are worth bringing up, so I'm doing it, but I'm not a competent authority.)
Key points:
Napster didn't have the music on its computers or distribute it and therefore was not guilty of copyright infringement. It merely maintained a public list of places where music could be found. If I published a list of libraries, telling where to find particular books or CDs, would I be infringing copyrights? No. You might make illegal copies of those CDs in the library, but that would make you liable, not me.
Napster was a file-sharing system, not specifically a piracy system. That is, copyrighted music could be, and assuredly was, exchanged on Napster. However, non-copyrighted music was also exchanged, as well as music that was under copyright but whose copyright holders had given permission to distribute it. Before Napster was shut down, says Mr. Boies, 25,000 performers had given permission.
An important question, says Mr. Boies, is that of "substantial non-infringing purpose." A system that can be used only for criminal purposes is one thing; if however it has legitimate uses, it cannot be shut down on the grounds that sometimes it is used illegitimately.
For example, the entertainment industry once wanted to outlaw or regulate VCRs on the grounds that they could be used for illegally copying movies (and certainly were). They could also be used for playing legally purchased tapes or making movies of your child's birthday party. The courts therefore refused to regulate or make illegal VCRs or blank tapes.
Now, is Napster, as a generic file-sharing system, responsible for the content shared? According to Mr. Boies, Internet service providers are specifically not responsible. This is not an odd principle: Although child pornography is sent through the U.S. Postal Service, no one suggests that the post office ought to be charged criminally. Terrorists may use the telephone system to plot massacres, but the phone companies aren't expected to prevent this. If I e-mail child pornography to a fellow deviate, is AT&T; Worldnet guilty?
Napster lost according to its fans, because the RIAA outmoneyed and outlawyered it. Other services like it have sprung up. In PC Magazine for March 12, a lengthy article rates the Napster clones for ease of use and variety of music. (Morpheus, at www.morpheus.com, gets the highest rating.) The trick with many of the new services is that they don't have central servers that can be shut down. This is technically cute, and we may talk about it some week.
The PC Mag piece is interesting because it shows how great the mainstream support is for Napsterism. The magazine is absolutely respectable, yet it reviews copyright-ignoring services as happily as it would different brands of infrared computer mice. The hostility toward, or disregard for, the RIAA pervades the tech magazines and techy sites on the Internet. You would expect this from Wired, arguably a publication of geeky, young technoid males. You find the same attitude at adult sites.
The copyright question needs a solution. We haven't found it yet, but the battle is not over.

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