Within the blink of a juridical eye, the Napster vs RIAA lawsuit changed from a volatile shouting match to a productive debate. That's a good thing not simply because it postponed a hasty decision, it was good because the legal wrangling and subsequent mainstream media coverage gave the public an opportunity to learn about the complicated issues surrounding the case. As we listen to odd intellectual bedfellows Lars Ullrich, Esther Dyson, Orrin Hatch, and Courtney Love parse the complicated issues, I can't help but think that each side's defeats and the subsequent nasty aftertastes have raised the level of discourse.
What happened to all the bellicose hollering from both sides about taking it to the streets? On July 26, 2000 Napster was enjoined; on July 28 the 9th U.S. Circuit Court of Appeals stayed the injunction. All of the hoopla from both sides before that week -- from organized record industry boycotts by Napster users to thuggish diatribes by the RIAA to overly shrill appeals by certain multi-platinum-selling heavy metal drummers -- suddenly was replaced by only the sound of so many rhetorical firearms clattering to the pavement.
At the time of this writing we sit at the most edifying point in the debate. MTV and The Newshour with Jim Lehrer couch proposed outcomes for a situation in which (supposedly) 20 million people can get all the recorded music they want for free in terms felt to make one interested rather than terrified. Lars seems to have calmed down; All the young technologists seem to have calmed down ("Shawn meet Sean. Sean, Shawn...". There's even some discursive conversation about what this all might mean to consumers and musicians. And a few people are actually learning about how cool file sharing actually is.
So if that's where we sit now, let's outline the landscape inhabited by the Napster v. RIAA case.
Peers and Intellectual Property on the Web
Peer-to-peer file sharing's threat to the intellectual property orthodoxy is not a first for the Web. Did anybody else have those weird conversations with writers and editors back in 1995 who freaked out over the ability to View Source or even the concept of hypertext? "You mean they can just copy it?! Or they can just leave and go anywhere?"
Be confident that right now developers are making P2P applications for not only movies and books, also making P2P sharing applications for limited-memory set-top boxes. Wouldn't you like to not worry about soaking up all your Tivo or WebTV memory and be able to surf a gated, and thus legal, network for the cooking show, movie, or sporting event you missed?
It's important to point out that five years ago answers about stealing the written word evolved naturally. The answer was that everyone needed to learn about the technology that made the Web work. Content creators who understood the rudiments of the history of the Internet, the client-server relationship, the browser, and HTML, tended to feel less anxious and even came up with some community standards. Offering clear attributions and links on webpages or in articles reprinted in email have worked pretty well so far.
Meanwhile on the software side of Web production, consultants were being looked upon as heretics in commercial product company boardrooms. These upstarts were coming to these website-buying corporations with radical craziness. Try telling the manager of a multi-million dollar account who spent many thousands of dollars installing name-brand server software that they have to switch to Apache because it's better and it costs virtually nothing. They get this really strange look on their face. The Open Source movement, intentionally or not, has raised the conscientiousness of commercial network software purchasers. And now it's an issue in the Napster case.
Nope, Not Open Source
Napster isn't open source. All the Napster knock-off applications are reverse-engineered. As consumers and musicians become more informed. The complications of the Napster case have led directly to that education because the mainstream news media had to parse the issues to cover the story. The fact that Napster's code isn't freely distributed could be understood to be a strategy set somewhere between hypocrisy and irony. Napster is an application distributed by a corporation used for sharing music, yet Napster as a code is proprietary. A fair characterization of this situation is that it's, well, really weird.
If Napster's code had been open all along, wouldn't their legal exposure be less? Forget offshore Napster-island nationstates, and other similarly elegant strategies. If they had just released ownership of the code, the company could have traded a possibly tiny bit of their brand equity for a perhaps a far less risky legal position.
Laws and Acts
Like many journalists, I, too, am going to take a ham-fisted whack at describing a couple of legal precedents and Acts of Congress at play in the case. Hey, I've played the guitar for a long time, so I consider myself a qualified legal expert. Why not.
Up until Patel's July verdict, it seemed that "contributory infringement" would be the biggest bone of contention in the case. In the "Betamax Case," Sony Corp v. Universal Studios the Supreme Court ruled in 1984 that Sony wasn't liable for contributory infringement. Sony was said not to be liable because the machine could be used to tape programs for private use, which was considered "fair use" -- and keep in mind that's just one slice of a very giant and difficult-to-digest Fair Use pizza...
Incidentally, Napster tried to riff on the Betamax case. The Betamax personal recording of video was referred to as "time-shifting"; Judge Patel wouldn't accept one of Napster's description of its technology as "space-shifting."
There was a recent addition to the 1984 "substantial non-infringing use" precedent that had to do directly with MP3s. In 1999, the RIAA brought suit against Diamond Multimedia because of Diamond's portable MP3 device, the Rio Player
Now everybody take a deep breath...
Okay, so the RIAA brought the Rio case under the The Audio Home Recording Act of 1992 (or AHRA). But the Ninth Circuit ruled against RIAA in this case for two reasons. First, the court said that there is language in the AHRA that skoots Rio out from under the statute. Roughly speaking, Rio gets MP3 files solely from hard drives, and the court said that the AHRA excluded hard-drives because computers contain other stuff besides music.
Although Napster may or may not be found guilty of "contributory infringement," they might or might not also get in trouble for committing something called "vicarious infringement," which does sound
a little cooler. There was a case brought in 1996 against people who operated a swap meet at which vendors sold counterfeit recordings. In Fonovisa v. Cherry Auction, the Ninth Circuit ruled that the operators of the swap meet didn't take steps to keep vendors from selling pirated music, and this was seen as vicarious infringement.
Judge Patel in her injunction against Napster pointed directly at Fonovisa. You can read Patel's opinion in a PDF file on the RIAA website. Well, okay, maybe you can't because it's a blurry photocopy crammed into .pdf. Patel "largely agreed with [the RIAA's] characterization" that Napster was an Internet swap meet indistinguishable from the case of Fonavisa. Patel also says, "Unlike the swap meet vendors, Napster users offer their infringing music for free."
It would be unreasonable to assert that Napster's legal problems are over, but then again it was a weird week in July when first the injunction and then the stay came down within about 48 hours. The other heap of issues that will go into the development of P2P technology primarily deal with the RIAA's history of treating consumers and musicians less than generously when given a choice.
The Slow Rush To Watermarking
On the other side, let's look at the Record Industry Association of America. People who write music have had more to worry about recently than file-sharing software. A hot topic in May 2000 was the "Work-For-Hire" language in the Digital Millenium Copyright Act. It took a pitched battle by artists to ensure that their rights were protected in recent DMCA Amendments. If you're interested, you should read Marybeth Peter's remarks from the House Sub-Committee on Courts and Intellectual Property.
I cannot help but remember that the RIAA are the same folks who made me a fool in the '80s when I thought, "They can't just make us buy CDs." Don't get me wrong, I like CDs fine. But it was not only a creepy experience to walk into my favorite record store and discover all the vinyl gone, but it was even creepier when I found out that the relatively expensive compact disc only cost about a buck to manufacture.
Another odd spot the record companies find themselves in is having to take responsibility for technology they don't particularly understand. The pressure to figure out a technology for tracking downloads is palpable. Unfortunately, the Secure Digital Music Initiative has progressed, shall we say, glacially. Not only is SDMI not offering any Napster-killers, but instead of being bombarded by demo tapes, record executives are bombarded by start-ups saying they've figured out how to watermark and encrypt everything under the sun -- or at least in the catalog.
The Answer Is I Don't Want An Answer
All of us stand at a crossroads in the Napster case. But now that both sides have lost a skirmish or two everyone can see that no matter which direction we choose there are more crossroads just down the road. In the coming months there will be real opportunity to learn about this stuff and watch the knot of issues to become disentangled, however slowly. Also we can clear our heads from dumbfounding experiences like witnessing Senator Orrin Hatch talk to Lars Ullrich about rock music, listening to Napster, Inc.'s dismay about their proprietary intellectual property, or shuddering at the realization that if the RIAA actually figures out a way to track downloads we'll somehow still pay $16.95 per album.
In the meantime, I suggest we all do some reading.
Rio Player Case
The Audio Home Recording Act of 1992 (or AHRA)
Fonovisa v. Cherry Auction
Digital Millenium Copyright Act (PDF)
Secure Digital Music Initiative
Marybeth Peter's Remarks to the House Sub-Committee on Courts and Intellectual Property
Judge Patel's opinion in a PDF file
Electronic Frontier Foundation's Intellectual Property Archive
