Re: Napster destroys Western Civilization

On Mon, 8 May 2000, Robert Cumbow <rcumbow[_at_]grahamdunn.com> wrote:
>
> On Fri, 5 May 2000, David Hale <dhale[_at_]aggt.com> wrote, in part:
> >
> > Napster, however, should (does?) have the means of screening out
> > access to copyright protected material. It would be a pain, and
> > probably kill Napster's business model, but it is technologically
> > possible.
>
> As I understand it, Napster doesn't copy music. It merely provides
> a way of linking the music files of its users so that any one user
> has access to all the files. Where the exchange of files takes
> place between users who own legitimately purchased copies of the
> works, this would appear to be a non-infringing activity. Under
> Universal v. Sony, if Napster has a substantial non-infringing use,
> then it should not be enjoined. My question is, assuming it's
> technologically possible (and I'm not convinced that it is), should
> Napster be required to provide a means for determining which of its
> users' files are legal and which are infringements?

You know, I'm sure these are poor analogies (and I'm sure I'll hear about it), but they are the only ones that come to mind at the moment.

The sale of alcohol is legal -- yet bartenders today are expected to assess a person's tolerance level, etc. and are increasingly being held legally liable in instances where intoxicated patrons become involved in accidents after leaving the bartenders' establishments. Part of the rationale for this is the expectation that a bartender "reasonably knew or should have known" that the continuing to serve the patron would most likely result in serious consequences.

Same thing with guns -- the sale of a gun is legal, but we still hold the sellers to a reasonable level of responsibility. A customer comes in to the shop with the intent to purchase a gun, and while doing so, he's ranting and raving about getting revenge on his coworkers or spouse. There is nothing in the customer's background check to legally prevent the sale of the gun. Society still wants to hold that vendor responsible when the purchaser uses it to wreak havoc, and the masses beat the drum of "he either knew or should have reasonably known" that such an outcome was probable.

I haven't seen anything (and if you have, please chime in) that even remotely suggests that this Napster software has any other purpose or intent for use other than making copies of music files without paying royalties and without obtaining permissions. In fact, the creator has explicitly said that his intent was to provide people with a way to make copies of music files easily. Mr. Cumbow may be right -- Napster doesn't "technically" copy the works -- but the creator provides this product/service with the knowledge (and even the reasonable expectation) that it will be used to make unauthorized reproductions of music.

Marty Hayes
<9ball[_at_]hostsite.net> Received on Tue May 09 2000 - 12:49:52 GMT