john borland rocks! cnet is a HUGE proponent of Napster.
> -----Original Message-----
> From: Robbins, Mark [mailto:[EMAIL PROTECTED]]
> Sent: Wednesday, July 05, 2000 12:22 PM
> To: [EMAIL PROTECTED]
> Subject: [MMouse]: Copyright law rocks.
>
>
> Napster: Downloading music for free is legal
> By John Borland, CNET News.com
>
> Embattled online music-swapping company Napster has a simple
> message for
> the courts and for the record industry: Downloading songs
> online without
> paying for them is legal. In its first lengthy legal response
> to the record
> industry's attempt to shut down the service, Napster
> attorneys today said
> that finding and downloading copyrighted songs for free is
> protected by law
> as long as Napster members themselves aren't making money from the
> recordings.
>
> The brief cited a recent federal court case that decided some
> noncommercial
> copying of music is protected by law. That extends even to
> making a song
> available for thousands of random Net users to download, the company's
> attorneys say--and that means Napster is doing nothing wrong.
>
> "If Napster users are not acting illegally, then there is no
> contributory
> (copyright) infringement," David Boies, the high-profile
> antitrust lawyer
> recently hired by Napster to spearhead its legal team, said
> in a conference
> call with reporters.
>
> But Boies also raised a far more ambitious argument that
> could be hugely
> damaging for the record companies if it gains legal traction. Citing
> internal documents he says show the labels have abused their
> market power
> to block alternative channels of music distribution, along
> with an obscure
> antitrust law, the attorney says the labels have lost the
> legal ability to
> enforce their copyrights.
>
> "If you use a copyright to achieve an anti-competitive
> purpose, you lose
> the rights to them," he said.
>
> Napster is facing a full-court press by the Recording
> Industry Association
> of America (RIAA) and its member record companies, which are
> asking a judge
> for a preliminary injunction removing all major-label songs from the
> file-swapping service while a larger case comes to trial.
>
> The record companies contend that Napster is facilitating copyright
> infringement on a massive scale by allowing its millions of members to
> search for songs on each others' computers and to download
> them for free.
> In its most recent set of legal briefs, the industry cited
> surveys that it
> said proved online file-sharing is already cutting into CD sales.
>
> The file-swapping company responded today with a battery of
> its own surveys
> that say Napster actually helps spur CD sales, noting that
> retail music
> sales figures have climbed since the service began. According
> to a survey
> by a Wharton School of Business professor, 70 percent of
> Napster members
> polled reported they've used the service to sample music
> before buying it,
> the brief added.
>
> But the core of today's legal papers are a trio of Napster defenses
> outlining why federal judge Marilyn Hall Patel shouldn't shut down the
> service.
>
> The company first contends that its members' song downloads
> are legal under
> the same law that protected Diamond Multimedia's first MP3
> player from a
> different RIAA suit last year. That law, the 1992 Audio Home
> Recording Act,
> explicitly bars copyright suits from being brought "based on the
> noncommercial use by a consumer" of a digital or analog
> recording device or
> medium.
>
> Under this argument, copying music through services such as Napster or
> Gnutella would be legal, but downloads of software or movies
> would still be
> copyright violations.
>
> If that argument fails, Napster has several backups.
>
> The company is arguing that its service should have the same
> protections
> that saved the Betamax videocassette recorder from being
> ruled illegal in
> the 1980s. The movie industry had sued Sony for producing a
> machine that
> could make illegal copies of films, but a court ruled that
> VCRs had other,
> legal uses as well.
>
> Napster, too, can be used for legal purposes, such as marketing or
> promoting songs from record label partners or unsigned bands,
> even if many
> people are trading copyrighted material, the company noted.
> Napster simply
> has to establish that its service is "capable of substantial
> non-infringing
> use" to meet that legal test, Boies said.
>
> Finally, the company is repeating its contention that it is simply an
> online "directory" of music and as thus is not legally
> responsible for the
> actions of people using its service. The company lost this
> argument in an
> earlier legal round.
>
> But Boies and his team are adding a new legal twist to the
> argument--one
> that harks to Boies' recent work as the head of the Justice
> Department's
> antitrust team fighting Microsoft.
>
> The attorneys have cited an obscure legal doctrine dubbed "copyright
> misuse," which says copyright holders can lose the power to
> enforce their
> copyrights if they've used them to achieve an
> anti-competitive purpose.
>
> Through the legal discovery process, Napster has obtained
> internal record
> company documents that Boies said show the RIAA is "misusing
> copyrights for
> anti-competitive purposes." That undermines the association's
> right to sue
> Napster on copyright grounds, Napster contends.
>
> The "Big Five" record labels--Sony Music, EMI Recorded Music,
> Bertelsmann's
> BMG Entertainment, Time Warner's Warner Music and Seagram's
> Universal Music
> Group--were recently cited by the Federal Trade Commission
> for collective
> pressure tactics that have boosted the price of CDs. Although
> the labels
> agreed to change their practices, they never admitted wrongdoing as a
> result of the suit.
>
> The two sides are scheduled to meet in court July 26, where
> the judge will
> decide whether to grant a preliminary injunction against Napster. The
> technology company is asking that this date be pushed back to
> allow the
> court to take a detailed look at the issues and evidence
> before reaching a
> decision.
>
http://dailynews.yahoo.com/h/cn/20000704/tc/napster_downloading_music_for_fr
ee_i
s_legal_5.html
because there is more than one
future and nothing
is inevitable
