Wednesday, February 14, 2001 Volume 66, Issue 96



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 music.

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 people."

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' infringing behavior.

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," Janicke said.

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