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Napster's Execution Stayed; Not Fair Use
Mirrors:
- http://eon.law.harvard.edu/~wseltzer/napster.html
- http://www.politechbot.com/docs/napster.021201.html
- http://lvalue.com/nap.html
As Michael Sims points out, these 22 words are probably the most important portion of the ruling; everything else is technical details and window-dressing:
"...the record supports the district court's conclusion that Napster users do not engage in fair use of the copyrighted materials. We agree."
That doesn't look good for those who want to swap copyrighted music peer-to-peer. That same comment could probably apply to Gnutella users, for example. Brace for impact.
Moving on to the case of Napster specifically and what will happen in the immediate future...
The court found that the injunction is simply too broad in its current form, but bounced the case back to the district court with instructions, essentially, on how to do an injunction properly.
They were quite clear that an injunction should be issued to stop Napster:
The district court correctly recognized that a preliminary injunction against Napster's participation in copyright infringement is not only warranted but required.
But then went on to explain why the current injunction must be limited to the extent that Napster fails to comply with Metallica-style "here is the list of bad files" warnings. Only in such a situation can an injunction stand:
We believe, however, that the scope of the injunction needs modification in light of our opinion. Specifically, we reiterate that contributory liability may potentially be imposed only to the extent that Napster: (1) receives reasonable knowledge of specific infringing files with copyrighted musical compositions and sound recordings; (2) knows or should know that such files are available on the Napster system; and (3) fails to act to prevent viral distribution of the works. ... The mere existence of the Napster system, absent actual notice and Napster's demonstrated failure to remove the offending material, is insufficient to impose contributory liability.
I'm not quite sure how this could be enforced. Obviously, anyone can rename any MP3 "metallica-master-of-puppets.mp3" and Napster is not capable of acting to prevent distribution of same. What Napster can do is kick users off the system who have been shown to be pirates. And since they have shown their willingness to comply in the past, I'm not sure whether the court will ever find that Napster will "fail to act."
Finally, there was this simple comment:
Napster may be vicariously liable when it fails to affirmatively use its ability to patrol its system and preclude access to potentially infringing files listed in its search index.
(See quote below)
The only obvious error I found in the appelate court response is contained in this section. The appelate court interprets the home recording act as requiring that the primary or main function of a device be to create digital recordings. Computers, however, become misunderstood because they are, by nature, multifunction devices. A home recording device, such as a VCR, can easily be created out of a PC that only runs one piece of software and can be sold as such. Internet appliance devices are already made out of general purpose components and sold as "Internet only" devices although they can be modified easily to be general purpose computers.
There are many cases of recording studios that use general purpose computers running only recording and audio editing software. These computers must be considered general purpose in nature, although they should not be excluded from consideration as audio recording devices. The inclusion of a sound card capable of both input for recording and output of recorded or generated audio ought to include computers as being as capable of recording digital audio as a primary recording device.
- Michael T. Babcock (Yes, I blog)
it still boggles my mind that anybody could actually argue that Napster should be shut down: they don't even distribute any copyrighted material! all Napster does is to tell people where to get information; information that may be copyrighted.
last i checked, it's not illegal for me to go around telling people where to buy drugs. nor is it illegal to write a book telling people how to make pipe bombs. can anybody tell me why Napster is considered differently? as far as i can tell it's just people failing to see the parallels to existing situations only because they're ingnorant of the technology.
now you and i know that 99% of Napster users use the service to pirate RIAA music. personally i use it to distribute my own music (yes really, there are those of use who do this!), and to obtain obscure/out of print music. but regardless of how it's used, Napster still just provides information, and no actual files. if Napster were distributing MP3s themselves then it would be valid of course, but they're not. telling people how to do illegal things has always been protected under free speech: the Home Audio Recording Act doesn't even enter into it!
of course i'm still bitter about paying the RIAA every time i want to burn a CD of my own music. i guess i'd better get used to being stepped on by the RIAA.
- j
However, the Appeals Court did find that
In otherwords, just because Napster is currently used mainly for music piracy, that does not preclude possible future uses that are legal and commercially viable. Current uses are not the definition of a system. Thus, a shutdown of the service is too drastic a remedy.
The court also rejected the district court's interpretation of the Fonovisa (bootleg cassette flea market stall case) precedent, in that Napster's ability to police it's "premises" are not as complete as the defendent's in Fonovisa. From the case:
While the Fonovisa precedent is still applicable, Napster's knowledge of their users' files is limited, in that they only know the name of the file, not the content. The Appeals court determined that Napster's "premises" extend only to the file names, thus they must police file names to the extent that copyright holders require, but cannot be required to determine a violation by analysing the contents of a file, since that is outside the bounds of their system. The Appeals court placed the burden of identifying copyright violations on the copyright holders, but also said that Napster possesses and must exercise the power to remove the offending files/users from the system. Blockquoth Appeals court:
That last sentence seems to require that any contributory infringement suit would need to show systematic and willful disregard of violation notices, which Napster has been complying with.
Napster did lose on many substantive issues, but they got off pretty easy on the most important one- the extent of their responsibility is to be balanced with the responsibilities of copyright holders and violators (users :).
Some interesting points here are the last little caveat in the last paragraph of section eight. The first amendment ("fair use") claim made by Napster and used by many here was completely nuked by the court. It found that Napster users were not fair users and therefore the first amendment protections against prior restraint do not apply here.
In operational terms the modifications to the injunction are also interesting. Basically the court found that the original injunction was too vague because it put all of the burden on copyright policing on Napster. The court pushed most of the burden back to the copyright holder, saying that the RIAA, et al. must notify Napster of a violation to start the process in each case of suspected infringement. Napster then has to follow-through and nuke the content and user, but the court did find that peered content on decentralized systems cannot be held to a higher standard than the safe harbor provisions of the DMCA require given the reality of the architectures of such systems.
jim
AZI/Mojo Nation
While the new standard promulgated by the Ninth Circuit, that Napster may be limited, but only when: (1) it receives reasonable knowledge of specific infringing files; (2) knows or should know that such files are available on Napster; ad (3) fails to act to prevent "viral distribution" of the works, may be perceived as something better than simply affirming the District Court, Napster lost big on virtually every key substantive issue:
(1) Affirmed finding of no fair use by users;
(2) Affirmed finding of no substantial noninfringing use;
(3) Affirmed finding that sampling is not fair use or a substantial noninfringing use;
(4) Affirmed finding that Space-shifting in Napster is not fair use or a substantial noninfringing use;
(5) Affirmed finding of material contribution and vicarious liability;
(6) Affirmed finding that AHRA doesn't help Napster;
(7) Affirmed finding that DMCA doesn't help Napster;
(8) Affirmed findings rejecting waiver and copyright misuse defenses;
(9)Affirmed finding that $5M bond for injunction is sufficient;
(10)Rejected Napster's argument that injunction is inappropriate remedy, that a compulsory royalty should instead be imposed.
In short, this sets up a very nice position for the Plaintiffs, and compromises substantially Defendant's main advantages.
I anticipate applying for en banc review and/or Supreme Court review by Napster -- I seriously doubt they can survive going to trial under this new set of legal standards.
In short, while Napster isn't shut down today, unless a change is due, the grim reaper may well come around tomorrow.
Hey, that gives me a good idea -- why doesn't napster just publish a daily bulletin of which computers are hosting which files? That would be printed on paper, so it must be covered by the first amendment!! Get this much assured in court, so they know they have a right to do it.
Then, just for convenience, you can also publish this same list online once a day. Then, why not have a dynamically updated list of who's hosting which files at any given moment? Why not throw in some search capability? Then, why not make people register to use it, for marketing purposes? Hey, it's just a "music swapping" newspaper with an interesting companion website!
When is the music no longer a copyrighted object? If I hear a song in the morning, and recall it during the day, is that not a copy of the intellectual content (stored in the memory cells of the brain)? By remembering the song, did I just infringe upon the copyright?
Well, according to the record companies, ANY copy is infringing on the copyright. The reason you can't be charged for that second copy is only because technology hasn't been invented to track it, not because of a lack of desire by the copyright holders. [he says sourly]
Let's look at the trends...
Middle Ages: No one owns the music or the performance of music. If RIAA had existed back then, every bard who wandered from tavern to tavern performing for tips would have had to pay royalties or get hung.
Colonial Times: Music is owned by the author but it can be played freely by bands and eventually jukeboxes. Authors sell a lot of sheet music and performers/jukeboxes get paid to play it.
This century: Music is owned by the author but the performance of music is owned by the artist. Now you have to pay for both to even hear the music. Physical copies of music recordings are yours to own, but not reproduce
This decade: Someone comes up with the brilliant idea that you no longer own media. Pay-per-view schemes start out. Licenses are written to grant you no rights of any kind to music regardless of what you paid, when you paid, or who you paid.
The future: Music will be only permitted via direct brain transmission that is immediately wiped from memory after listening. This allows an artist to sell the same song over and over again to the same people since no one ever gets tired of it. Ice Ice Baby and Chumbawumba top the charts.
Think I'm kidding? It's only a question of inventing the technology. The goal and purpose of the recording and media industries is to make sure than any time we obtain any pleasure or satisfaction from anything they own, we pay for it.
- JoeShmoe
-- I wonder which will go down in history as the bigger failure: the War on Drugs or the War on Filesharing
Napster has both the ability to use its search function to identify infringing musical recordings and the right to bar participation of users who engage in the transmission of infringing files.
Huh? How is this even possible? When did Napster get watermarking technology? How can a search function possible identify infringing recordings?
If I search "Britney Spears" am I searching for her music or the audio recording of her swearing on a live mic?
If I search "Metalica" (one L on purpose) aren't I bypassing any search-function ban because last time I checked the real band was "Metallica"?
If I have a song called "Metallica sucks" won't that get caught in the same filter that excludes all infringing Metallica songs?
The ONLY way to tell if a file is infringing is to download and listen to it. There is no technology that can do that except human ears. And even if you identify one particular infringing file and wipe all copies from the service, what about the copies that are missing one or two bytes from the end of the file or other copies of the same song that were made at a completely different bitrate?
The courts are insane. How can they order Napster to do something that isn't technologically possible...even for a well-funded group like SDMI?
- JoeShmoe
-- I wonder which will go down in history as the bigger failure: the War on Drugs or the War on Filesharing
On news.com (CNET): Breaking News: Appeals court wants Napster injunction modified.
On cnn.com (AOL Time Warner): Appeals court upholds most of Napster injunction, CNN reports.
To be fair, my quick and dirty read of the injunction is that the appeals court agreed with the district court on almost everything and is just asking that the injunction be modified to apply some procedural polish (so CNN's report is more accurate), but I think it is interesting that reporting of the "same" story seems to differ depending on which pies the parent company of the reporting organization has their fingers in.