Music for Nothing - music on the Internet

Napster may or may not prevail in court, but its lawyers have come up with an interesting array of arguments. Under the Audio Home Recording Act of 1992, the company contends, any noncommercial copying of music is fair use and thus legal. Citing the law's legislative history, Napster's attorneys make a strong case that Congress "deemed taping CDs or records borrowed from friends, and giving copies of one's own CDs or records to friends, to be synonymous with 'personal use,' 'private copying,' 'home use,' and 'private use,'" all of which are explicitly legal.

For its part, the RIAA contends that there is a difference between a right to copy and a right to distribute, and that copying for your immediate friends is not the same as copying for "countless third party strangers." More powerfully, it notes that the Audio Home Recording Act isn't supposed to apply to computers.

Napster also points to a significant precedent set by the Supreme Court. In 1984, the high court ruled that Universal Studios could not prevent Sony from introducing the Betamax VCR just because the machine could be used for pirating videos, noting that the "sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes, or, indeed, is merely capable of substantial noninfringing uses." In 1999, the RIAA sued Diamond Multimedia, maker of a portable MP3 player called the Rio, on the grounds that the device facilitates piracy. A federal appeals court ruled in Diamond's favor, citing the Betamax decision as a precedent.

Given that many artists are deliberately offering their music for free online as a way of making a name for themselves, it's easy to argue that there's more to Napster than piracy--and, thus, that it shouldn't be banned.

This argument is undercut by the uncomfortable fact that the vast majority of Napster searches--87 percent according to the RIAA, though Napster naturally disputes that figure--are for copyrighted material. It is further undercut by some embarrassing internal e-mails uncovered in mid-June. In one message, a Napster executive flatly states that the program's users "are exchanging pirated music"; in another, a manager comments that "admitting we know Napster is used for the transfer of illegal MP3 files might not be the best thing to do."

Napster's lawyers face no shortage of backup arguments--most radically, that attempts "to use the limited monopoly rights bestowed on a copyright holder to control competition in an area outside the scope of the copyright" constitute "copyright misuse," which "bars the copyright holder from enforcing its copyright unless and until its misuse is 'cured.'" Napster's brief argues that since the plaintiffs have themselves engaged in behavior comparable to Napster's--Sony, for example, sells "a portable listening device...that plays MP3 files, regardless of whether the files were made with the authorization of the copyright holders"--they clearly don't object in principle to such technologies. Their actual agenda, the brief continues, is to quell competition.