But Napster is not alone. There are other Internet sites offering song-swapping software. These include Gnutella and Freenet, which use decentralized technology, and Wrapster which allows any file to be disguised as an MP3 file, and Macster, for Macintosh computers.
Because most music is protected by copyright owned by either the musicians or record labels, and because these song-swapping services are offered largely without the permission of the copyright owners, Napster has been a target for copyright infringement lawsuits, including those brought by rapper Dr. Dre and the band Metallica.
Most notably, however, is the copyright infringement lawsuit filed by The Recording Industry Association of America (RIAA) against Napster alleging that the company encourages users to infringe the copyrights of recording artists and labels.
In July, the District Court granted RIAA’s request for a preliminary injunction against Napster (an order shutting the service down until the dispute is resolved). Napster appealed that order and won a stay of the injunction, which allows it to continue to operate for the time being.
The case has raised issues about freedom of information and the scope of copyright protections in cyberspace. At the heart of the dispute is the “copyright,” which is legal protection given to “original works of authorship,” and provides that the creators of the works have the exclusive right to reproduce and distribute the work for the life of the author plus 50 years.
The question is whether Napster is knowingly contributing to copyright infringement by its users. Napster argues that personal copying of music is protected by federal law, the 1992 Audio Home Recording Act. This Act prohibits individuals from being sued for copyright infringement “based on noncommercial use by a consumer” of a digital or analog recording device or medium, or, in other words, making copies of music for personal use.
Therefore, Napster argues, its service of searching for and downloading music for free does not violate copyright law provided that Napster users are copying the music for noncommercial use, and are not making money from the recordings. The attorney for Napster, David Boies (the high-profile prosecutor in the Microsoft antitrust case) has stated that “if Napster users are not acting illegally, then there is no contributory (copyright) infringement.”
Both sides have produced surveys, one side alleging that the online file-sharing has hurt CD sales, while the other states that CD sales have actually risen since the service began.
On Monday, October 2 the parties presented their arguments to a three-judge panel of the Ninth Circuit Court of Appeals. Since the Napster case raises issues of free speech and copyright infringement in this relatively new area of digital information and the Internet, it has the potential to affect future legislation. It will be interesting to follow the suit as it progresses. Stay tuned!
– Denise Ciampitti