7.6 Napster case

Napster is a case that makes both sides in the copyright wars spit venom. So I will offer a link to a useful resource on the case. The FindLaw Napster webpage is not compulsory reading for this unit, just a pointer if you would like to find out more about the details of the case and view some of the original documents.

In Chapter 8 Lessig makes an eloquent argument for Napster as a celestial jukebox – a technology giving access to a wider range of music than ever before in human history – not just a tool to steal music. In Chapter 11 he turns to the legal issues. In the Sony Corp of America v Universal City Studios Inc. case in 1984, the US Supreme Court decided that a technology that has the ‘potential’ for a ‘substantial non-infringing use’ – the video cassette recorder – could not be banned.

Some uses for Napster that could be substantial and non-infringing are:

• listening to music freely released on the Net;

• listening to music in the public domain not subject to copyright restrictions;

• listening to other kinds of authorised works, e.g. recordings of lectures;

• sampling, whereby people check out music to see whether they like it before buying;

• ‘space shifting’, the US practice of downloading MP3 files of music that you already own on CD onto your computer for personal use. Note: making extra copies for personal use is not allowed in the UK.

These are no more than theoretical. The original Napster wasn't slowly turned off, as Lessig predicted, but turned off by the company until they could get a legally acceptable subscription service running. They were dealt a further blow in March 2002, when the Appeal Court rejected their appeal. Possibly more significantly, they suffered a serious commercial setback in July 2002 when Thomas Middelhoff resigned as Chief Executive of Bertelsmann AG, Napster's biggest investor. Middlehoff was Napster's biggest supporter at Bertelsmann. In September 2002 a bankruptcy judge in Delaware blocked the formal sale of Napster to Bertelsmann. By the end of November 2002, Napster's assets were bought by a company called Roxio, which produces CD burning technology. Roxio launched a new commercial fee-paying version of Napster in October 2003.

Apple had already been running their iTunes music downloading service for several months before that, and numerous competitors have appeared since. Music industry-backed initiatives such as PressPlay and MusicNet had been ongoing since about 2001 but had run into numerous problems, including intellectual property issues and an antitrust probe.