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[whitespace] Bleak House

The legal battle over Napster could last longer than 'In-a-Gadda-Da-Vida'

By Gina Arnold

MORE THAN just the lousy weather caused a dark cloud of ennui to envelope the "B" ballroom of the Park Hyatt Hotel in downtown San Francisco Monday morning Feb. 12. That was the site of Napster's post-appellate court decision press conference, and although the ballroom was full of reporters and photographers snapping merrily away at Shawn Fanning's depressed little face, it was nothing like the panic-stricken scenes that took place inside the Ninth Circuit Courts during last July and October's preliminary injunction hearing and appeal.

At both those events, arrogant phalanxes of blue-serge-clad lawyers shouldered their way through crowds of students and journalists, while cell phones went nuts every few minutes and the claimants' voices grew ever angrier and more high-pitched. For a while there last fall, the trial that pitted the RIAA (representing all five major record labels plus various music publishers) against the Redwood City startup, which currently claims 56 million users, was as exciting, in its way, as that O.J. one.

But who ever would have thought that a subject as dry as intellectual copyright law could seem so glamorous, so important? The magic of file-sharing (and its association with that all-powerful glamour stimulant, rock music) has done the trick. Music theft or liberation? Royalties or freedom? At the moment, there are few Americans under the age of 30 (and lawyers of any age) who don't hold an opinion on these questions.

But things have changed a lot in the four months since the appeals court began discussing whether to overturn an injunction that would have shut Napster down prior to a trial for copyright infringement. Now, rather than trumpeting large (but fun) statements about bringing the entire distribution system of record labels to their knees, Napster has begun to settle with the majors.

Moreover, the legal industry has developed a new protocol of coverage, so that you can now read the court's decision online at exactly 10am just as easily as you can slog over to the courthouse for a copy of it; then you can "dial in" to a press conference afterward on your mobile, thus skipping a $20 downtown San Francisco parking tab.

I prefer the old-fashioned way of news-gathering, mostly because, not being a legal expert, it behooves me to be in the midst of a crowd of smarties when I receive 53 pages of dense legalese.

But I wasn't the only one going "Huh?" in the San Francisco Courthouse clerk's room last Monday; even some of the lawyers in the house were initially puzzled by the court's ruling (argued and submitted by Judges Schroeder, Beezer and Paez): "We affirm in part, reverse in part and remand."

At 10am, exactly, when the court clerk handed out copies of the decision, a booming five minutes of total silence fell over the room as we all attempted to digest its contents. Then "This is TOTALLY opaque," one lawyer for the plaintiffs burst out disgustedly.

The trouble was, no one could immediately figure out the answer to our one burning question, i.e., whether Napster had to shut down immediately or not, and a week later, we still don't know. Indeed, instead of clarifying the issues at hand, the Appellate Court had merely confounded them and us.

The Law Creeps

SUDDENLY, A LONG VISTA OF arcane thickets seemed in the offing, as the issue becomes more and more mired in a lack of clarity, currency, or just plain good sense. Napster vs. RIAA is fast becoming the modern-day version of Jarvis v. Jarvis, the archetypal ruinous lawsuit depicted in Dickens' novel Bleak House.

Presently, the plaintiff's lawyer grabbed me by the arm to highlight a sentence on page 48: "The district court correctly recognized that a preliminary injunction against Napster's participation in copyright infringement is not only warranted but required."

"I think this is the gist of the decision," she said, a remark I took to mean the opposite when I read a big beautiful loophole in practically the next sentence: "Napster ... bears the burden of policing the system within the limits of the system. Here we recognize that this is not an exact science in that the files are user-named."

That means that the court ruled that Napster needs to be notified by the RIAA of exactly which files are copyrighted, by name. But what's in a name when it comes to an electronic environment? What if users all agree to start listing our MP3s in pig Latin? The music itself will still be online, and we'll still be able to access it. Legally.

It is this kind of conundrum that makes the whole Napster-and-intellectual-copyright issue so very, very difficult. Besides, even as the court deliberates, all the facts change, so that between starting the suit last April and now, the RIAA and Napster have actually begun working toward the exact same thing, that is, the creation of a monetized system of file-sharing, probably by subscription, to begin in July.

Thus, the appellate court seems to be on no one's side, because by condemning Napster for "secondary liability," the court has also declared Napster users in violation of copyright law. That's a problem for both Napster and the RIAA, who have now managed to declare war on their own clientele--besides being, in my humble opinion, just plain wrong.

In its most recent ruling, for instance, the court says that taping off a CD or the radio (an activity protected under the Sony v. Diamond Rio decision and by the Fair Use statute) is different from copying music off a hard drive--and that's a distinction I just don't get, do you? I copy music off Napster for the exact same reason I'd copy off a CD or the radio: to hear it, not to sell it. And I'd guess 99.9999 percent of the other 56 million users do, too.

Fool's Game

THE COURT GOES ON to say that Napster's architecture--i.e., the very concept of peer-to-peer file-sharing--is legal, but that Napster's "conduct" is not. That means it can't do what it does on a business-footing without violating copyright law, thus leaving the door wide open for the legal use of all decentralized, open-source file-sharing servers like Gnutella, FreeNet and a host of other newer ones, like Aimster (which allows users to swap files through AOL's instant message software) and OpenNap, a noncommercial web server that helps users connect to other music-based servers online in order to find files they are interested in.

The point of all these not-for-profit ventures is that they are basically community-service oriented. According to the (anonymous) programmer who helped write OpenNap, "There was lots of file-trading going on before Napster, and it will continue regardless of their fate. I figure that eventually you will see [that] places like Yahoo and other major web services will have a file-sharing component to complement their free email and web forums."

This will be a great development for us dedicated file-sharers, but it means that artists whose files are traded online still won't be getting any royalties, that the music business will still be losing revenue and, in short, that after all these months of legal argument nothing has been resolved whatsoever on the intellectual copyright front. Indeed, the only thing the RIAA v. Napster lawsuit proves is that going to law is a total fool's game. But then, no one ever said the record industry wasn't foolish.

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From the February 22-28, 2001 issue of Metro, Silicon Valley's Weekly Newspaper.

Copyright © 2001 Metro Publishing Inc. Metroactive is affiliated with the Boulevards Network.

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