Judge rules against Napster
By Ken Fountain
Senior Staff Writer
While a federal judge's ruling Monday against
Napster, Inc. was expected by most legal experts, there is still a chance
the music-swapping Internet service might ultimately win out, a UH expert
on intellectual property laws said.
Chief District Judge Marilyn Hall Patel
of the U.S. Court of Appeals for the Ninth Circuit struck fear in the hearts
of music fans around the world when she upheld a lower court's injunction
against Napster that prevents it from allowing its users to swap copyrighted
Napster is being sued by nine major record
labels, as well as the songwriting team of Jerry Leiber and Mike Stoller,
who contend that Napster knowingly allows its users to illegally infringe
on their copyrighted materials.
"It was pretty much what people in my field
expected," said Prof. Paul Janicke of the UH Law Center.
"People have been swapping music for years,
whether by sheet music, records, tapes or CDs. Before, it was mostly a
matter of people lending the music to their friends, who would make their
own copies and give them back," Janicke said. "But it always meant that
someone was buying the music originally and lending it out to only a few
According to Janicke, the courts have held
for years that this kind of swapping, for non-commercial private use, is
perfectly legal. The Supreme Court ruled years ago that the taping of television
programs for private "time-shifting" purposes is also legal, and in fact
benefits broadcasters and advertisers since it makes commercials more likely
to be seen.
"But with Napster, it's a completely different
situation, whereby only one person buys the music and 99 or hundreds of
more people receive it essentially for free."
According to Janicke, Napster's principal
argument is that it only serves as a way of putting one person in touch
with another, acting essentially like a phone company, and that it can't
be held accountable for the illegal behavior of its users.
"Judge Patel didn't buy it, because the
copying was of such an enormous scale that they couldn't possibly not be
aware of it," Janicke said.
Janicke said that, at this point, Napster
has a few legal maneuvers at its disposal.
It can seek to have the case heard by the
entire membership of the Court of Appeals, Ninth Circuit, which could reverse
the decision made by the three-judge panel Monday.
Another option is for the company to ask
for the case to be immediately heard by the Supreme Court, through a writ
of certiorari. But since that court rarely takes on cases that haven't
gone completely through the appeals process, and it hears only a handful
of the hundreds of cases that are referred to it during a session, the
possibility is extremely unlikely, Janicke said.
That leaves bringing the case to trial,
where Janicke said Napster has its best opportunity. While he was unaware
whether the company has asked for a jury trial, Janicke said it was possible
that it could convince a jury that it was indeed unaware of its users'
He said that because of the legal complexities
of the case, a trial could take two or more weeks.
If it's decided in Napster's favor, Janicke
said it might be left to Congress to alter current copyright laws. He noted
that there are already 15 or 20 special exemptions to such laws for entities
like veteran's groups, churches and libraries.
"In the end, it may well be decided that
the age of sound recording has ended, at least in terms of private use,"