A last minute reprieve has temporarily saved Napster from shutting
down following a US court ruling. But what are the future
implications of the service's battle with the American recording
industry?
On Wednesday 26 July 2000, the RIAA was celebrating what it
believed to be a massive victory in the battle to keep control of
its artist's material. US District Judge, Marilyn Hall Patel, had
just ruled that Napster, the MP3 file sharing service, must stop
aiding the exchange of music under the copyright of the five major
labels the RIAA represents. Napster had until midnight Friday to
comply, but the hugely popular service had already acknowledged
that it would be impossible to filter out the millions of files
effected every day and that the judge's decision had effectively
closed it down.
Just over a day later, however, the situation had changed
considerably, with events taking place that could make the RIAA
consider its position a little more carefully. Napster has now been
allowed to continue as it was, until the conclusion of its appeal
trial following some last minute legal manoeuvres. Perhaps more
ominously for the RIAA was the massive increase in use of copycat
services that the ruling caused, as users sought out alternatives
to Napster to continue their file sharing activities. With so many
services out there, and many almost impossible to legislate
against, the problem of protecting an artist's copyright will not
go away even if Napster is forced to close.At one time it was easy
for the music industry and artists to keep control of their
intellectual property. Records were sold and royalties could be
taken from a share in that sale. Radio broadcasts were easy to
monitor and royalties were received whenever a certain track was
aired. As technology has progressed however, legal questions have
been raised as to how to enforce copyright law. When tape cassettes
first appeared there was great concern from artists and music
companies over the problems it would cause with piracy. A similar
situation occurred when VHS was launched onto the market, enraging
the film industry. While a degree of piracy still occurs in these
areas, the situation has been kept relatively under control, and
both the music and film industry have been able to take advantage
of new recording formats. It seems that the music industry was
caught rather short with the emergence of MP3 and is now seriously
concerned that it may lose all control of its intellectual
property.What started off as a simple compressed audio file type
has turned into an Internet phenomenon. MP3 is a reasonably quick
and simple way to receive music tracks in electronic format. There
is no provision for copyright protection built into the format and,
as such, the music industry has very little control over it. Anyone
with a CD-ROM drive in their PC, connection to the Web, and MP3
recording and playback software - which is freely available over
the Internet - can record an audio track onto their hard drive and
send it to anyone they wish. While this is copyright infringement,
it is almost impossible to trace the movement of these audio files,
which can then be passed onto any number of people with reasonably
speedy connection to the Web.Napster's arrival on the scene has
just compounded what was already a very worrying situation.
Launched early last year by 19-year old Shawn Fanning, Napster
offers the ability for anyone who logs onto the service to open a
part of their hard drive to the public in order to share their
collection of MP3 files. Anyone else who is logged into the service
at the time can then download the files of their choosing, easily
found via the software's search facility, directly from the user's
PC. Unsurprisingly, the site became hugely popular with music fans,
especially those on US University campuses, who wanted to download
the music of their favourite bands. With over 20 million registered
users around the world, the perceived loss of money to the music
industry was potentially enormous.And so the lawsuits followed, but
Napster believed it was protected against copyright infringement by
an act that was pushed through by the music industry itself. The
Digital Millennium Copyright Act (DMCA) was passed as law in the US
two years ago as a means to protect the interests of songwriters,
artists and movie directors in the electronic age. But what was
originally seen as a forward-thinking move by these industries now
seems horrendously out-of-date following the introduction of
file-sharing software. While the DMCA gave the courts new powers to
enforce copyright protection on the Internet, it also introduced
safe harbour provisions. These provisions protected service
providers from being liable for copyright infringement if files
were being passed between users of the service. It was meant to
protect the major ISPs from liability, which could run into
billions of dollars.Napster, however, tried to use this safe
harbour provision against the music industry. Napster did not hold
any of the MP3 files that were being traded and so claimed it was
not responsible for any copyright infringement that took place. In
essence, it was a service provider that allows users to share
files, even if they happen to be files protected by copyright.
Nevertheless, it was obvious that the vast majority of files
exchanged over Napster were copyright protected, a figure of around
90 per cent was accepted by the judge and may well have swayed the
judgement. Still, Napster believed it had a strong case and several
legal precedents in its favour.It tried using the "Xerox" defence:
Xerox is not responsible for anyone illegally using its
photocopiers to duplicate copyrighted material, so Napster should
not be liable for people using its software to illegally exchange
music files. Another precedent set in 1998, when CBS tried to sue
Amstrad, saw Amstrad's high-speed tape-to-tape machines cleared of
breaking copyright law, even though CBS claimed the machines were
only capable of recording and not playback. One additional
argument, although not a legal precedent, that Napster used
revolved around VHS. When in its infancy, the film industry pushed
for VHS sales to be blocked because of the threat of piracy. The US
Supreme Court refused to do so and now VHS sales count for a
significant part of the film industry's revenue. As part of this
argument, Napster produced a survey from market researchers Jupiter
Communications, that claimed to show that Napster users were far
more likely to buy CDs after using the service to sample the music.
In the end, however, this all came to nothing.In general, courts
have always tended to leave the responsibility of the copyright
holder to enforce compliance with copyright law and avoided
clamping down hard on new technologies. In the Napster instance,
the threat was perceived as so huge that Judge Hall Patel felt she
just had to do something.As such, any tracks whose copyright
belonged to Warner Brothers music group, Sony Music, Seagram's
Universal Music Group BMG, Bertelsmann AG and EMI, were ordered to
be removed from the service within two days of the ruling. Napster
claimed this was impossible and would cause the service to close
down, resulting in the loss of 40 jobs within days. This did not
hold sway with Judge Hall Patel who claimed: "Napster wrote the
software, it's up to them to write software that will remove, from
users, the ability to copy copyrighted material. They created a
monster."Following the reprieve, Napster hopes that the decision
will now be overturned completely in the Court of Appeal. But the
RIAA is not the only organisation to challenge Napster. Individual
artists such as anarchic thrash metal band turned corporate rock
giants, Metallica, and rap star, Dr Dre, have also taken legal
action against the company. The Judge's ruling could well turn the
balance in favour of the artists whether the decision is overturned
or not. By referring to "massive infringement" Judge Hall has
blocked a defence based on denying access to users who infringe a
particular artist's copyright.Whether or not RIAA's lawsuit does
bring about the eventual downfall of Napster, it is highly unlikely
that it will spell an end to the problem of mass copyright
infringement over the Internet. Already there are numerous
companies offering similar services, all vying to be the next
Napster and willing to take the risks associated with it. Among
these copycats, however, is a new breed of software that takes the
risk out of file swapping, so there is no central point for the
industry to attack. This could be far more damaging to the RIAA and
impossible to work with.Gnutella software is designed to perform
the same purpose as Napster, but in a slightly different way. The
system was introduced on March 14 this year by a group of
programmers from AOL, but the threat to intellectual property for
all types of electronic data was perceived to be so enormous that
its website was torn down within 24 hours of its introduction. By
then though, enough users had got hold of the software, which was
then posted to other websites and newsgroups and has spread like
wildfire ever since. Gnutella allows computers to connect together
in a file-sharing community similar to Napster, but as each user
acts as both a server and client, there is no need for a central
service that could be liable to court action. Worse still, Gnutella
not only allows the transfer of MP3 files but of a whole range of
files and software, broadening the piracy threat to a much greater
number of industries. The only thing that is likely to slow the
uptake of Gnutella is its comparative difficulty to use in relation
to Napster. Gnutella is an open source program constantly being
developed by amateur coders and hackers and, as such, can be quite
hard to use. Napster however, has prided itself in its ease of use.
Nevertheless, when the initial verdict was announced, Gnutella
sites around the world were swamped with traffic as users sought
alternative file sharing sites.But it is not just Gnutella that has
found itself struggling to cope with demand. Scour.net, a similar
service to Napster that also has a case with the RIAA, was forced
to shut down temporarily due to excessive demand. Other similar
sites, such as Angry Coffee, Gigabeat, Freenet and Napigator, also
saw a significant increase in interest.If Napster wins its appeal,
the RIAA is going to have to rethink its strategy towards online
music. Even if the appeal is rejected, there are plenty of other
services out there willing to take Napster's users on board. Many
of these will not be so easy to take down. Recent manoeuvring by
Napster has seen it promoting a spirit of co-operation between
itself and the RIAA. This could involve a charge for the service or
as a promotional tool for artists among other options. So far, the
RIAA refuses to look at this option, preferring just to get Napster
out of the way, but it may make more sense to take a new approach
to the problem.So far, the music industry has stuck doggedly to its
traditional business model while other industries have embraced the
opportunity that the Internet provides. A recent UK Government
report warned that musicians and songwriters were set to lose
millions of pounds in revenue through piracy unless it makes it
easier to buy music online. It highlighted the fact that music's
most devoted fans were teenagers, yet they could not purchase
online until they were 18, and that many adults were still wary of
passing credit card details over the Internet. If the music
industry is to have success in drawing music fans away from the
Web, then it needs to look at new ways to market its online
activities and make it much easier to purchase music online.It may
seem unlikely, but the RIAA could work with Napster if it wins the
appeal; this could be advantageous to both parties. It could be
argued that Napster gets music to users who would never before have
thought of purchasing certain artists' recordings. It is also
believed that many music enthusiasts don't want to bite the hand
that feeds it, and will continue to purchase music whether there is
an easy form of piracy or not, just as the survey from Jupiter
Communications showed. There are certainly marketing opportunities
there that could be explored rather than for the industry just to
continue fighting a battle it may never win. If Napster is forced
to close, the file-sharing community may move to an area completely
out of the RIAA's, and in essence, the law's control. If that
happens, the battle against piracy may be lost completely.
Paul
Grant