Napster: The Internet Law Controversy

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Brett M. Steinberg.
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Last updated: November 30, 2000

The Law Suit

Although Napster and other mp3 service providers have given many people the convenience of downloading, sampling, and creating CD's for less than a dollar (the cost of a blank CD), this new technology has stirred up controversy with many people. The main adversary of this new technology, the Recording Industry Association of America (RIAA), claims Napster is participating in contributory copyright infringement.

To win the lawsuit, the RIAA must prove that the company was aware its product was being used for copyright infringement and significantly participated in that infringement. Joining the fight with the RIAA is Dr. Dre, a famous rap artist, and the rock band known as Metallica. These artists feel their work is being stolen at a high frequency and have waged their own lawsuit for copyright infringement.

Metallica and Dr. Dre each presented Napster with a list of users whom both artists claim have illegally downloaded their music. "Metallica's list of 332,293 users was delivered on Thursday (5/18/2000), and is the second that the band has presented to the company. Dr. Dre's list of 239,612 users was delivered on Wednesday (5/17/2000), and is his first." Both artists have also submitted MD5 information, which are electronic signatures that identify specific songs. Those are the songs they claim are being illegally downloaded. The artists requested that Napster use this information to block downloads of these specific songs rather than block the users altogether.

Although it may appear Napster receives world-wide support, those who oppose this online community have hired "big guns" to ensure that Napster falls hard on its face. "Napster argues that its service, which it says has 28 million users, is protected by the Audio Home Recording Act. The act allows people to tape musical programs in their homes for personal use." Napster attorney David Boies argued that Napster is not guilty of copyright violations because they are in the service of providing business. He said Napster allows users to share their personal copies of recorded work, which is legal under the Fair Use Doctrine. He also compared Napster to the VCR and argued that the U.S. Supreme Court decision that allowed users to record television programs also covers Napster.


Legal Arguments

Besides the questions of constitutionality posed against Napster, there are many opinions that disagree with the constitutionality of the current injunction placed against Napster. "This case presents a number of important and novel issues about the need to harmonize the First Amendment and copyright law in the context of the new technology of the Internet." In this case brief, the introduction points out that there are two fundamental flaws in the district court's rulings on the motion for a preliminary injunction. First, it was felt that the preliminary injunction issued by the district court was overbroad and suppressed a wide range of protected, non-infringing speech in which Internet users engage. The injunction places the burden of identifying the works in which plaintiffs hold valid copyrights, rather than requiring plaintiffs to provide that information to Napster. Without this information, Napster has no choice but to limit the use of its software to specific users who are able to prove that the files they wish to exchange are not an infringement against plaintiffs' copyrights. For that reason, the injunction is an example of a prior restraint in violation of the First Amendment.

This radical tangent from established constitutional precedent has the potential to cause several problems:

Besides filing and injunction, Dr. Dre and Metallica's lawyers began sending out letters to college campuses across the U.S asking that they promptly curtail the use of napster among its students and send a letter stating their position regarding this matter. The letters do not expressly threaten any legal action against schools that do not choose to restrict Napster, but mention that Metallica had listed Yale University, the University Of Southern California, and Indiana University as co-defendants in the band's lawsuit against Napster filed in April.

Despite all of the issues surrounding using applications like Napster, this software and many others have been welcomed by people everywhere. Although users state that they are not committing copyright infringement if they do not create compact discs from downloaded music, the recording industry feels that sales will cut back as a result of their original works being available online. However, the Napster Web site states the copyright policy that prohibits unauthorized copying and distribution of MP3 files obtained through Napster. The company also says it can block access to violators of the policy and to bands that do not want their songs shared in the medium.

In briefs to the 9th U.S. Circuit Court of Appeals, lawyers for the U.S. Copyright Office state that Napster has no defense against recording industry claims that it facilitates widespread copyright infringement. U.S. District Court Judge Marylin Hall Patel ruled that Napster does contribute to widespread copyright infringement in violation of the 1992 Audio Home Recording Act. The Audio Home Recording Act does protect consumers, though, from copying protected works for personal consumption, as long as it has no public or commercial distribution. This would make Napster legal if it meant that one person downloaded music for their personal use, but since the service involves millions of people sharing files, this is not the case.

Metallica compiled over 300,000 Napster screen names that were alleged to be trading their songs. Lars Ulrich, drummer for Metallica, handed the list of usernames to Napster headquarters in hopes to knock them off the server. However, over ten percent of these users on the list notified Napster when they were unable to log on because they claimed to be misidentified as Metallica listeners. Napster's website posted information on how users should file a counter notification if they were misidentified.

In response to this issue, Napster founder Shawn Fanning stated, "The fact that so many people have come forward and disputed Metallica's accusation that they did not break the law demonstrates that this is not a black and white issue." Napster forwarded users' petitions to Metallica's attorney who, in turn, replied, "They're absolutely lying. There's no question that they're lying. Each and every one of them was offering Metallica MP3s for uploads." Napster agreed to restore the blocked accounts if Metallica does not take legal action against individual users within ten days. Along with Napster, CEO of, Michael Robertson, said that he was in negotiations with the industry to settle copyright infringement issues.

Napster Today

Napster has recently joined with media giant Bertelsmann, which owns recording company BMG, to develop the fee-based service. This would serve as a "happy medium" between the recording industry and Napster users. Napster creators may finally make a earnings through this new use of fees since it has thus far not made any profit. In addition, artists will profit by being compensated for their music being traded online.Recently, Napster will soon be charging a nominal fee to obtain access to its file-sharing services. Although the users are still hoping for the use of the free service, it may still be more economic for them to use Napster or other similar services than to purchase all of the songs that they may have access to with the use of Napster. Bertelsmann will invest an undisclosed sum to Napster to activate the new technology. Once the new service is in place, the lawsuit for copyright infringement against Napster will be dropped.

This alliance represents a concession on the parts of both Napster and BMG. Although many of Napster's fans feel the company is selling out, "there is no question that file sharing will exist in the future as a part of the media and entertainment industries," said Bertelsmann CEO Thomas Middelhoff.

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