Information Policy Hot Topic 4 - Primary Contribution

Was Napster, as it was originally configured on the Web (not under its current arrangement with Bertelsmann), only software and, therefore, not a violation of copyright?

Napster (a word coined to describe a teenager’s “nappy” haircut) is a tool designed to make finding and sharing digital music easy (Sherman, 2000). Napster is a peer-to-peer file swapping service for collectors of MP3 music files (Stern, 2000). The music files that Napster assists users to swap are located on the hard disk drives (HDDs) of the users. Napster does not maintain copies of the actual files on its equipment or even temporarily in memory. Files are transferred directly from one user to another. However, Napster does provide an index database and access to the Napster software via Internet download (Stern, 2000). The software and index databases allow one Napster user to access another user’s HDD directly.

Napster was charged in U.S. District Court in the Central District of California with committing continuing copyright infringements, unlawful use of digital audio interface device, and violations of the Racketeering Influenced and Corrupt Organizations Act (Johnston, 2000). Since Napster does not copy any of the music its users swap, the most it could be found liable for is indirect copyright infringement (i.e. contributory or vicarious liability).

Napster, as it was originally configured on the Web, is guilty of indirect copyright infringement. Napster is a service - one that from its beginning knew it would be contributing to direct copyright infringement by its users (Stern, 2000). Unlike the “Sony VCR” Supreme Court case, Napster does not have “substantial non-infringing uses.” In the Sony case, Sony was found not guilty of contributory infringement after demonstrating that some fraction of VCR use was for time shifting (i.e. recording a TV program for viewing at a later time).

Napster’s claim that its use by new artists to distribute their music freely over the Internet constitutes “substantial non-infringing uses” is not valid – especially with the disclosure of internal e-mails that prove executives were aware of widespread unauthorized copying. Napster’s claim would be more substantial if the company had other examples of legitimate uses of its service. For example, file-sharing initiatives using Napster-style technology are being developed as research tools (Stern, 2000). In addition, MyCIO.com has developed an automatic virus protection updating service using peer-to-peer technology, and scientists from the Human Genome Project are using the technology to share genomic data.

References

Johnston, M. (2000). Napster Hires Boies to Take On Copyright Case. International Data Group. http://www.thestandard.com/article/display/0,1151,16086,00.html. Updated June 16, 2000. Accessed December 27, 2000.

Sherman, C. (2000). Napster: Copyright Killer or Distribution Hero? Online. http://vweb.hwwilsonweb.com/cgi-bin/webclient.pl?sp.usernumber.p=294140&url=yes&sp.nextform=show1rec.htm&sp.dbid.p=S(Y5)%2CS(H7)&WIL.DOCTYPE.HTML.P=%3CA%20HREF=http%3A//wilsontxt.hwwilson.com/pdfhtml/01340/WAB5H/XSY.htm.GT.%20FULL%20TEXT%2C%20HTML%20VERSION%20%3C/A.GT.%20or%20%3CA%20HREF%3Dhttp%3A//wilsontxt.hwwilson.com/pdffull/01340/WAB5H/XSY.pdf.GT.%20FULL%20TEXT%2C%20PDF%20VERSION%20%3C/A.GT.&SP.URL.P=I(H7Z7)J(0000006507)&. Updated November, 2000. Accessed December 27, 2000.

Stern, R. (2000). Napster: A walking copyright infringement. IEEE Micro. http://computer.org/micro/mi2000/pdf/m6004.pdf. Updated November, 2000. Accessed December 27, 2000.