The Other Side of the Napster Ruling

Napster has been taking its share of hits this past week from the music industry and the RIAA as a result of the Ninth US Circuit Court of Appeals' ruling last Monday that will likely pave the way for shutting down the file-sharing service. In its findings, the Court states that "Napster users who upload file names to the search index for others to copy violate plaintiffs' distribution rights. Napster users who download files containing copyrighted music violate plaintiffs' reproduction rights."

But not so fast, say both the Consumer Electronics Association and Utah Senator Orrin Hatch. As soon as the Napster judgment was announced, the CEA issued its statement condemning the decision, while Hatch, who is also a musician whose songs can be found on Napster's servers, expressed caution and urged the Senate Judiciary Committee to hold a third round of hearings on the online music marketplace. Hatch adds that "I would expect that my colleagues, like me, will be contacted by the over 50 million Napster fans who oppose the injunction and fear the demise of Napster. This may prompt a legislative response."

The CEA's Gary Shapiro wasted little time providing some counter-spin to the RIAA's lauding of the music industry victory, stating that the CEA is "greatly disappointed with this ruling." In a prepared statement released by the CEA within hours of the ruling, the CEA says that it believes that "the Court of Appeals has ignored basic principles of copyright infringement and fair use established in the US Supreme Court's Sony Betamax decision. Technological innovation helps the US economy and consumers. Opponents should carry a heavy burden to show that a new technology is illegal. This ruling, unless overturned upon appeal, could stymie technological development and sets a dangerous precedent for the preservation of fair use rights enjoyed by consumers for more than 20 years.

"The Ninth Circuit is the same Circuit that ruled in 1981 that the VCR was illegal, before the ruling was overturned by the Supreme Court. If that decision had stood, we would have no VCR or movie rentals—to the detriment of Hollywood and American consumers. We can only wonder, if this ruling stands, how technology and consumer access will be limited in the future.

"This ruling underscores the need for a new approach to intellectual property issues in the digital age. If the content industry has its way, the 'play' button will become the 'pay' button, widening the digital divide and stalling the revolution in instant, global access to education, information, and entertainment. The court's decision presumes that 50 million Napster users are violating the law. We urge these alleged 'lawbreakers' to contact their congressional representative on this issue."

According to a new book called MP3 Underground, all the fuss over shutting down the service may really be just a tempest in a teapot. Author Ron White explains that "at the moment the Ninth Circuit Court was announcing its decision, there were 9,100 users connected to Napster's servers. But at the same time, there were 706,000 music fans using the secret Napster servers to download songs from 156 million MP3 files available without resorting to Napster's own servers."

White claims that, despite the February 12 court ruling against Napster, trading of songs online will continue—even if Napster is shut down completely. He adds that his book "exposes the tricks to using Napster, the hidden Napster sites, how to crack copy protection, and where to look for hard-to-find music downloads."

Which is exactly what Senator Hatch is foreseeing as a likely scenario that will be more of a headache for the music business than Napster is today. Hatch says that his feeling about this Ninth Circuit decision is "a gnawing concern that this victory for the labels may prove short-sighted. I fear that this consumer demand will be built by Napster clones like Freenet or Gnutella, and such a development would further undermine copyright online."

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