Napster will live or die by ‘fair use’

It's all in how you read the tea leaves

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Analysis Napster is relying, for its defence against a copyright suit brought by the recording industry, upon a sixteen-year-old ruling popularly known as the Sony decision or simply 'Sony'.

The US Supreme Court found that the maker of video cassette recorders could not be held liable for contributing to copyright infringement because, while the machines can be used to duplicate copyrighted material without authorisation, they also have non-infringing uses, such as duplicating free material, or making archival copies of copyrighted work as permitted under the "fair use" provisions of US copyright law.

In that case, Sony was accused of "contributory infringement", as Napster now is. This means that the maker of a product or the provider of a service is enabling others to infringe copyrights without doing so directly themselves, in such a way as to incur responsibility.

No one disputes the fact that some Napster users (nearly all, by some estimates) are actively and vigorously violating music copyrights. Not even Napster denies that. The question is whether or not Napster is enabling the activity to an extent which would make them liable. And yes, contributory infringement is quite illegal under US copyright law -- sort of.


A chief exclusion recognised by the Sony decision is fair use, which means, generally, duplicating a purchased work in order to make a backup copy; recording a broadcast for "time-shifting", or viewing or listening at a convenient hour; and publishing snippets of copyrighted works for the purposes of criticism, analysis or argumentation.

Another exclusion for a potentially infringing product or service is that tricky matter of a substantial non-infringing use. The Supremes ruled very liberally on that point in Sony, acknowledging that the VCR was designed chiefly to duplicate copyrighted material without authorisation.

Yet the Court found it adequately redeeming that a person might wish to make a backup copy of a movie cassette they had bought, or view a television broadcast at a later time. The Court knew perfectly well that more often than not, duplicate copies would be exchanged among friends, and recorded broadcasts would be enjoyed more than the single time allowed by law.

These two exclusions are connected in the real world: a non-infringing use is necessarily a fair use, so once it's established that a device has a non-infringing use, it becomes impossible to suppress it without suppressing fair use. Thus in the Sony decision the Court chose to err well on the side of protecting fair use.

Interestingly, it was before the Ninth Circuit US Court of Appeals that Napster argued this week for continued blocking of a District Court's injunction against their operations on the basis of the Sony decision. Interesting because the Ninth Circuit, it just so happens, is the very body which the US Supreme Court overturned in that case.

So it was with great tact that Napster lawyer David Boies reminded the Court that they had already found contributory infringement in a product designed primarily for duplicating copyrighted works, and been gunned down by the Nine Immortals.

He drew other parallels between the Napster case and Sony, among them the fact that in both cases the accused 'contributor' and the actual hands-on infringers have no commercial relationship. Napster offers a service, as Sony sold a product. Neither is in a position to profit from any subsequent acts of copyright infringement, a point which the Supremes found significant.

The Court expressed considerable concern about that issue, with Judge Robert Beezer, in particular, returning to it frequently in questions to both lawyers arguing before him. "How is Napster supposed to know" when infringement occurs, he wondered. He also noted that the actual MP3 files traded aren't transferred through Napster's servers, but go instead from user to user via a direct connection. "[Napster doesn't] even touch it," he observed, "their fingerprints aren't on it."

Judge Beezer also showed some resistance to industry claims of Napster's rampant copyright violation since no criminal actions have been filed, a development one would expect if the situation were as bad as it's claimed to be. "At no expense to the music industry, the government will file an indictment -- if there's a sufficient factual showing," the Judge observed. That last phrase, and his tone of voice in delivering it, implied a suspicion that making 'a sufficient factual showing' might be beyond the industry's power. And the lingering question is, if the police can't be persuaded to act, why should the courts?

Lawyer Russell Frackman explained the fact away with a sentimental appeal to basic recording industry generosity and kindness, saying that they "don't want to put an individual in jail for using the Napster service." But no one on the other side of the big table seemed convinced.

DMCA to the Rescue

The recording industry is relying on the Digital Millennium Copyright Act (DMCA) to save their bacon, and that in itself is risky. The DMCA was poorly drafted, being chock full of ambiguities and outright inconsistencies. It's a sad testament to entertainment-industry 'assistance' in the legislative process, offered by lobbyists in the guise of helping legislators to draft complex law on matters with which they may not be, technically speaking, quite up to speed.

It has since proven to be a legislative Trojan Horse with which the industry has hoped to assail fair use. They never forgave Washington for the Sony decision, and the DMCA is their revenge.

But relying on it is not the safest of legal positions, because the Act is so poorly drafted that its inconsistencies and contradictions will, as a matter of course, have to be set right by the courts in order for there to be rational rulings on matters which it affects.

One of the standards in hearing a case affected by federal legislation is the will of Congress in creating it. No one in his right mind would imagine that Congress actually meant to do away with fair use, but the DMCA, in several areas, would accomplish just that.

However, industry lawyer Frackman appealed to the DMCA, which, as he said, prohibits "sophisticated private directories which refer Internet users to selected Internet sites where software, books, movies and music can be downloaded or transmitted from [a] safe harbour."

The Court didn't take the hint quite as Frackman had hoped. "Do you think if there is substantial infringement going on, the entire technology has to be shut down," Judge Mary Schroeder shot back. She was clearly thinking of Sony, that thorn in the entertainment industry's side, and giving the first indication that the Court might well use it to measure some of the more outrageous aspects of the DMCA.

Judge Schroeder's mild-mannered hostility was a disappointing surprise to the industry, which had gone to the hearing expecting her sympathy. This is because a 1996 decision, which Judge Schroeder wrote, had found that the organisers of a 'swap meet' could be held liable for contributory infringement, even though only the individual vendors were exchanging and selling copyrighted materials.

But when Frackman drew an analogy between the swap meet case and the Napster case, Judge Schroeder interrupted. "This is really different," she said flatly, noting that the swap meet organiser was able to see and control what was going on. Napster, all the judges seemed to agree, can do neither.

One Final Word...
Judge Beezer and Judge Schroeder both expressed concern about the recording industry's fast and loose treatment of fair use, returning to the topic several times before both lawyers.

Unfortunately, Frackman failed to reserve himself any rebuttal time, preferring instead to yield it to lawyer Carey Ramos, representing Jerry Lieber Music, to whom the Court listened with a palpable air of disinterest.

Napster champion Boies, on the other hand, was smart enough to yield himself a few minutes for rebuttal, and so got in the last word. And quite a good word it was. Having sussed out the Court's concerns, he appealed to them directly, noting that over twelve-thousand recording artists have already agreed to share their music directly, and freely, through Napster. A substantial, non-infringing use if ever we heard of one.

The Sony decision permitted the sale of a machine "whose primary and predominant purpose was to enable the [duplication] of copyrighted materials without authorisation, because of one, single, very limited [non-infringing] use," Boies reminded the Court. And "that was making one archival copy." The amount of fair use enabled by Napster "goes way beyond that," he concluded.

The case has yet a long way to go. This week's argument is only for the appellate court to establish whether or not their current block of a lower court's injunction against Napster should stand, and that decision may not come for three or four weeks. From there, a trial must open. And Napster welcomes it. "We want a trial as fast as possible," Boies told the Court. "We just don't want to be shut down while we're waiting."

And the trial itself will only be a mile-marker in the case. Whatever should be decided, the dissatisfied party will inevitably appeal. It's perfectly reasonable to imagine this case being argued before the US Supreme Court in a couple of years.

It's impossible to predict how the Napster case might evolve through all its future legal venues, but still the tea leaves are telling us that Napster has a very decent chance of prevailing in the end. ®


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