Free for all

Electronics Times, April 16, 2001

Mark Duguid looks at how MP3 and Napster have been tamed by the courts

At the turn of the 21st century, word began to spread - usually with a whisper of awe and fear - in newspapers, TV broadcasts and the boardrooms of international entertainment conglomerates, of a terrifying new virus which, if left unchecked, was set to crack the edifice of modern civilisation.

MP3 was associated with a phenomenon about which the cultural and political elite knew little and understood less: the Internet.

To the seers of the giant music industry multinationals, MP3 represents not just a threat to sales, but outright theft of their intellectual property (IP) on a grand scale. To the millions of Internet users who download files using software like Napster, or exchange files between themselves via e-mail or news groups, MP3 is a new, easy and fun way of collecting and sharing songs. To these people, music is not IP at all, just music.

We've been here before. In the late 1970s and early 1980s, the record industry, up in arms at the spread of the cassette tape, launched a campaign whose slogan - `Home taping is killing music' - was accompanied by a stark skull and crossbones motif, with a cassette replacing the skull. Of course, home taping did not kill music.

The arrival of the CD in the late 1980s saw a bonanza for the major labels as they repackaged their back catalogues and prepared to sell the public their record collections for a second time. But when MP3 began to appear, the memory of their failure to win the war against the cassette was too painful to bear. The labels were determined that they would not be defeated again. In Shawn Fanning, 19-year-old programmer and founder of the phenomenally successful Napster, they found their bete noir.

Napster became a phenomenon by providing the software to enable the exchange of MP3 files directly between users' personal hard drives. The result was a frenzy of music swapping - partly legitimate uncopyrighted material, but very substantially pirated. It was claimed that areas around US colleges were seeing slumps in CD sales as students became enthusiastic exchangers of MP3s.

Major artists joined the campaign against Napster and MP3, alarmed at reports that Madonna's latest album was available for free download in its entirety weeks before its release. Musicians like Metallica drummer Lars Ulrich spoke out against Napster, claiming that its software was damaging their record sales.

But such vocal opposition had unexpected effects - Ulrich saw his band's credibility nosedive, at least among the Web cognoscenti. Many fans were sickened at wealthy, pampered rock stars complaining about loss of income. Disillusioned fans set up an ironic Web campaign to compensate Ulrich for his losses - they raised $50. Other musicians came out in support of Napster, including rap artist Ice-T and ex- Nirvana drummer Dave Grohl.

Nevertheless, Napster found itself in the dock, literally and figuratively. It now looks as if Napster has finally lost the case brought against it by the Record Industry Association of America (RIAA), that it is illegally infringing copyright by allowing users to exchange music files without permission from the rights holders.

With the decision of the court, it looks like time is running out for Fanning's project: the site has just a few weeks left to remove all copyrighted material from its listings - not an easy task, particularly since it will have to include huge numbers of files where users have misspelt artists' names either accidentally or deliberately to frustrate the clean-up efforts.

Fanning's call for supporters to march on Washington is unlikely to win his case, and may even alienate many of those who have supported him so far - although many feel that the courts have come down hard, Napster's freedom to profit is hardly a rallying cry comparable to the battles against segregation or the Vietnam war.

But the decision of the court of appeals in the Napster case has more far-reaching implications. According to the Electronic Frontiers Foundation, one of the leading advocates of digital freedom, the decision undermines the ruling of the Supreme Court in the Betamax case some 20 years ago. This established that it was excessive for copyright holders to ban technology that might enable misuse.

The court's ruling holds that "if a computer system operator learns of specific material available on his system and fails to purge such material from the system, the operator knows and contributes to direct infringement". In other words, simple awareness of an infringement - and a `cease and desist' letter from the rights holder could in itself prove such knowledge - renders the technology provider liable for the misuse of the technology by a third party.

Although it stops some way short of overturning the Betamax ruling, the judgment does reduce the protection against vicarious liability by requiring that technology providers be vigilant for potential abuse - regardless of any evidence of an infringement occurring. This could leave Internet service providers (ISPs) liable for material stored on their servers by third parties. ISPs are beset by contrary judgements at present: as a result of other recent court decisions, they find themselves in a unique double bind - liable for libellous content on their servers as publishers, while at the same time unable to claim the right to protect their sources because they are not publishers.