Re: Napster destroys Western Civilization

On Wed, 10 May 2000, Daniel Lee <dlee[_at_]library.utah.edu> wrote:
>
> I am still struggling to see the difference between Napster and VCRs.
> The argument against VCRs (or photocopiers) could have been (was?) that
> they were made for the sole purpose of copying video content without
> paying admission/permission fees.

If my recollection serves, the photocopier was not introduced with the knowledge or expectation that its sole (or even primary) use would be unauthorized reproduction of others' copyrighted works. It was incepted as a solution to the drawbacks of carbon paper (anyone remember that stuff?). Carbon paper was messy to handle, and making more than one carbon copy resulted in 3rd and 4th layers being nearly illegible. Additionally, strikeovers from corrected errors also made copies difficult to read. The primary purpose of the photocopier initially was to give companies a way to produce "carbonless" copies of the letters they were creating.

With respect to the VCR: I disagree with your contention that its sole purpose was to avert paying permission/admission fees. Again, if recollection serves correctly, its "angle" or "sell point" was it afforded people the ability to view programs that they would otherwise miss when they couldn't be home -- hence the "time-shifting" platform. At that time, the targeted types of program to copy were largely network television-produced programs (such as sitcoms, soap operas, ABC after-school specials, etc.) -- all shows which were aired by the networks for "public consumption" without admission/viewing fees. It was also anticipated (and was largely the case, too) that once a person had viewed that time-shifted program, it would be recorded over. On those occasions where networks aired movies (such as Airplane, etc.), the rightsholders had been paid some amount of money (royalty) by the networks for such usage.

> Yet the courts determined that because there were legal uses of
> the device, it, in itself, was not infringing. People put up
> their own songs to be shared, others use Napster in lieu of
> hauling their CDs with them, or in place of radios at the
> workplace. These uses are either non-infringing (in the case of
> songs put up merely for distribution and not for economic return)
> or could reasonably be expected to be non-infringing.
>
> Yes the creators of Napster "provide this product/service with the
> knowledge (and even the reasonable expectation) that it will be used
> to make unauthorized reproductions of music." But Netscape and
> Microsoft make web browsers with the full understanding that people,
> minors included, will use it to look at blatantly illegal content.
> Following this argument, we would have the Justice Department going
> after them for contributing to the delinquincy of minors.

The question here is *what is the primary purpose or intent of the device*? There hasn't been a technology invented yet that someone hasn't found an illicit way to use, but those uses weren't the primary functions of the devices at the time they were created. I haven't seen anything that's indicated that the Napster product has any legally accepted use, and we both agree that the creators of Napster have the knowledge (and even reasonable expectation) that it will be used to make unauthorized reproductions of music. In fact, that's precisely the intended use of the device as stated by the creators -- that is its SOLE function. That differs from photocopier, VCRs, web browers, et al.

As far as Napster being used so that people don't have to haul their CDs around or have radios, it is not by any means a "given" that such a use is non-infringing. In fact, I would point out that copying for the convenience of having a more accessible or transportable copy is not fair use according to the Texaco case. You say they are put up "merely for distribution" and "not for economic profit", but one of the rights under copyright is the right to distribute or to restrict distribution (so as not to destroy the potential market). Also, the fact that there is not direct economic profit does not, by itself, automatically qualify such activites as fair use. The individual Napster users have not garnered permission from the various artists to further distribute their works.

Marty Hayes
<9ball[_at_]hostsite.net> Received on Thu May 11 2000 - 17:22:06 GMT