SALON

Salon Technology

Monday, Feb 12, 2001 8:30 PM UTC

Napster: Hanging by a thread

A federal appeals court rules against the file-trading service on nearly every point of law, but holds off enforcing the injunction against it -- for now.

By and

Topics:

Napster: Hanging by a thread

Napster is still alive — but just barely. A three-judge panel from the 9th Circuit Court of Appeals ruled for the recording industry on virtually every point of law at issue. Napster users, said the court, are infringing on recording industry copyrights, Napster has a responsiblity to halt that infringement and a preliminary injunction shutting down Napster is not just “warranted but required.”

However, the court also ruled that the injunction must be modified before it is fully upheld by the appellate court. Specifically, the court is requiring that Napster be notified in advance that it is in violation of copyright in particular cases, and if Napster refuses to bar transmission of the songs across the Napster network, it will then be in violation — and will be shut down.

The request for a modified injunction may offer Napster a small opening for survival, suggested several lawyers who have been following the case. Since District Court Judge Marilyn Patel delivered the original injunction, Napster has forged an alliance with the German media conglomerate Bertelsmann. Napster’s new commercial profile might encourage Judge Patel to broker an agreement between the recording industry and Napster that allows the music-trading service to continue operating, said one lawyer.

But the consensus opinion on the ruling is that the appellate court decision constitutes a major blow to Napster. Representatives of the recording industry were jubilant.

“The court confirmed our case on every count,” said Hilary Rosen, president of the Recording Industry Association of America, at a press conference. “We feel that Napster’s business model is morally and legally wrong and we’re very glad that the 9th Circuit Court agreed with us 100 percent … It is time for Napster to stand down and build their business the old-fashioned way. By seeking permission first.”

A corresponding statement from Napster CEO Hank Barry, in contrast, acknowledged a major setback.

“We are disappointed in today’s ruling,” read the statement. “Under this decision Napster could be shut down — even before a trial on the merits. The Court today ruled on the basis of what it recognized was an incomplete record before it. We look forward to getting more facts into the record. While we respect the Court’s decision, we believe, contrary to the Court’s ruling today, that Napster users are not copyright infringers and we will pursue every legal avenue to keep Napster operating.”

Napster’s outlook appears grim. The court brushed away the various defense strategies of Napster’s lawyers in language that leaves the file-trading service very little room left to maneuver. Napster users do not, said the court, engage in “fair use” of the copyrighted materials — a conclusion that several lawyers questioned as overly restrictive. Napster is likely to have a “deleterious effect on the present and future digital download market,” as well as on current CD sales, ruled the court. And use of Napster is not covered by the Audio Home Recording Act — i.e., downloading of MP3 files to computer hard drives is not the same as taping something on your VCR. The court also dismissed the theory that a Napster shutdown would cause great harm to Napster — arguing instead that the harm being caused by Napster to the recording industry was apparent, while the harm that might be caused to Napster was “speculative.”

“We disagree with the holding that if Napster is enjoined the harm is speculative,” said David Boies, chief counsel for Napster. “We think the harm to Napster and its users would be very real and substantial.”

The central ruling of the 19-page opinion laid out the bad news for Napster’s fans succinctly.

“The district court correctly recognized that a preliminary injunction against Napster’s participation in copyright infringement is not only warranted but required,” reads the opinion. “We believe, however, that the scope of the injunction needs modification in light of our opinion. Specifically, we reiterate that contributory liability may potentially be imposed only to the extent that Napster: (1) receives reasonable knowledge of specific infringing files with copyrighted musical compositions and sound recordings; (2) knows or should know that such files are available on the Napster system; and (3) fails to act to prevent viral distribution of the works. The mere existence of the Napster system, absent actual notice and Napster’s demonstrated failure to remove the offending material, is insufficient to impose contributory liability.”

Contributory liability is the central issue. One of the main goals of Napster’s defense was to argue that it was not responsible for what its users did — in other words, even if users were knowingly violating copyright by downloading a Metallica tune, Napster was just a conduit.

The court dismissed this defense, asserting that Napster had both a right and a responsibility to supervise its users’ actions. However, the one point on which the Court of Appeals disagreed with the District Court’s ruling was in the arena of “specific knowledge.” The District Court had argued that the law did not require specific knowledge of “specific acts of infringement.” The Court of Appeals, on the other hand, decreed that “evidence of actual knowledge of specific acts of infringement is required to hold a computer system operator liable for contributory copyright infringement.”

Therefore, the court ordered that the District Court rewrite its injunction to incorporate the requirement that Napster first be alerted of actual copyright infringements. If Napster fails to act upon that knowledge, then the injunction will shut Napster down.

What next? There is little doubt that a flood of alerts from the record studios warning Napster of infringement will soon descend on the beleaguered service. But Napster’s lawyers’ first priority will be to haggle over a new injunction with the District Court, hoping that the company’s new Bertelsmann backing will give the service more credibility as a legitimate commercial concern.

Other options include calling for an “en banc” review by the entire appellate court, instead of the three-judge panel that released Monday’s ruling. If the appellate court refused to hear the case again, then Napster could appeal all the way to the U.S. Supreme Court.

Next Article

Related Stories

More Related Stories

Featured Slide Shows

The week in 10 pics

close X
  • Share on Twitter
  • Share on Facebook
  • Thumbnails
  • Fullscreen
  • 1 of 11
  • Lisa Montgomery embraces her nephew Thursday after a tornado tore apart her home in Cleburne, Texas. The twister killed six people and destroyed entire swaths of the North Texas town.
    Credit: AP/LM Otero

  • Jack McMahon, the defense attorney for abortion doctor Kermit Gosnell, speaks outside the Criminal Justice Center in Philadelphia Tuesday. His client was convicted of killing three babies in his clinic, and will serve multiple life sentences.
    Credit: AP/Matt Rourke

  • A photo taken Monday captures Vice President Joe Biden's response to a Milwaukee second-grader's innovative proposal to end America's epidemic of gun violence. This guy!
    Credit: AP/Jenny Aicher

  • Sen. Rand Paul, R-Ky., flanked by a grouper-eyed Michele Bachmann, addresses the IRS' admission that it targeted Tea Party groups in advance of the 2012 election. In an op-ed for CNN Thursday, the Kentucky senator slammed the president for his faux outrage.
    Credit: AP/Molly Riley

  • Ousted IRS chief Steven Miller is sworn in on Capitol Hill Friday. Miller testified before the House Ways and Means Committee on the extra scrutiny the agency gave conservative groups applying for tax-exempt status.
    Credit: AP/J. Scott Applewhite

  • Attorney General Eric Holder pauses as he testifies on Capitol Hill before the House Judiciary Committee Wednesday. Holder is under fire, among other things, for the Justice Department's gathering of phone records at the Associated Press.
    Credit: AP/Carolyn Kaster

  • O.J. Simpson sits during an evidentiary hearing at Clark County District Court in Las Vegas, Nev., Thursday. Simpson, who is currently serving a nine-to-33-year sentence in state prison for armed robbery and kidnapping, is using a writ of habeas corpus to seek a new trial.
    Credit: AP/Las Vegas Review-Journal/Jeff Scheid

  • Major Tom to ground control: On Sunday astronaut Chris Hadfield recorded the first music video from space, a cover of David Bowie's "Space Oddity."
    Credit: AP/NASA/Chris Hadfield

  • When it rains it pours. President Barack Obama speaks during a news conference Thursday with Turkish Prime Minister Recep Tayyip Erdogan, inexplicably inspiring an #umbrellagate Twitter meme.
    Credit: AP/Jacquelyn Martin

  • A smoke plume rises high above a road block at the intersection of County A and Ross Road east of Solon Springs, Wis., Tuesday. No injuries were reported, but the the wildfire caused evacuations across northwestern Wisconsin.
    Credit: AP/The Duluth News-Tribune/Clint Austin

  • Recent Slide Shows

  • Share on Twitter
  • Share on Facebook
  • Thumbnails
  • Fullscreen
  • 1 of 11

Related Videos

Comments

 0 Comments

Comment Preview

Your name will appear as username

You may use these HTML tags and attributes: <a href=""> <b> <em> <strong> <i> <blockquote>

follow salon

Most Read

Popular on Reddit

links from salon.com

From Around the Web

Presented by Scribol
listener_new_rect The Listener: So long, Sookie Stackhouse

Recommendations