Musik

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Some thoughts on Napster.com

The idea behind Napster.com is that all their users make their music available to each other. This service allows to share music on the Internet.

Recently several different record companies filed a lawsuit against Napster claiming that Napster enables copyright infringement by distributing music on their web site. Therefore Napster may be liable for vicarious and contributory copyright infringement. Plaintiffs argue that Napster’s practice of offering music on their web site is neither subject to the Audio Home Recording Act (AHRA) nor to the “faire use” doctrine of the Copyright Act.

The AHRA

The AHRA generally balances the interests of manufactures, consumers, and copyright holders. As part of the balance it exempts in Section 1008 consumers from copyright infringement lawsuits for private uses of AHRA-covered "digital audio recording device [s]". In section 1001 the AHRA sets forth that a "digital audio recording device" is any machine or device of a type commonly distributed to individuals for use by individuals, whether or not included with or as part of some other machine or device, the digital recording function of which is designed or marketed for the primary purpose of, and that is capable of, making a digital audio copied recording for private use, except for

(A) professional model products, and

(B) dictation machines, answering machines, and other audio recording equipment that is designed and marketed primarily for the creation of sound recordings resulting from the fixation of nonmusical sounds.

A VCR for instance is such a device as well as a tape recorder. However, a general-purpose computer is not a digital audio recording device and therefore not subject to the exemption. On the other hand it is just a matter of definition: once a piece of software turns a computer into a digital audio recording device this software could be subsumed under Section 1001 of the AHRA. 

Plaintiffs argue that Napster is offering a “service” and the AHRA is designed for “staple articles of commerce” thus it cannot cover any of Napster’s practices. Then again, the law does not explicitly point that out and includes in addition to machines also devices which does not preclude all doubts that staple articles of commerce are exclusively subject to the law. Software as it is offered by Napster can also be such an – intangible – device. 

The Faire Use doctrine of the Copyright Act (C.A.) 

The six exclusive rights given to the author of works subject to the C. A. are restricted by the Faire Use doctrine set forth in § 107 C. A. 

If a certain use of a copyrighted work is within Faire Use is determined by four factors. 

1.     the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2.     the nature of the copyrighted work; meaning is the copyrighted work predominantly based on the author’s fantasy or is the work based on facts. In case of the latter a faire use is indicated

3.     the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4.     the effect of the use upon the potential market for or value of the copyrighted work.

Although, undoubtedly Napster is rather commercial because they generate money with their web site this does not automatically indicate that their proceeding is not within “faire use”. Napster argues that generating money by commercial advertisement on their web site does not have anything to do with the actual use of the music by their users. The purpose of their users’ copying is noncommercial. Nonetheless, making a copy to avoid buying and paying for a work is commercial use. Although, the user does not download music to sell or hire those copies to any third party in order to gain commercial advantage, however, users have a commercial motivation.

The second and third factor favor plaintiffs. The works are used entirely and they are certainly creative.

At the first glance the fourth factor whether the use has a harmful impact on the market is self-evident. The market and structure of the music industry will vanish if free trading of MP3s on the Internet became lawful. On the other hand one has to consider that the Faire Use doctrine is not to protect the markets and economy against change, but rather to enhance and encourage creativity. Composers and songwriters make not only use of their creativity for the art itself, but also to get their faire reward for their compositions. If a system could be established that enables copyright holders to be compensated for their work Napster would solely make record companies disappear rather then the art itself. Freeing the market from record companies’ influence would rather enhance and encourage creativity. A system that allows to reward copyright holders could be established through royalty taxation on computers or software that turns a computer into an audio recording device.

In times of the Internet the criticism of royalty payments in connection with the purchase of electronic equipment or software is unsupportable. Until the Internet developed, it was not possible to distribute those royalties correctly, because it was not feasible to track which songs were copied on a piece of equipment royalties were paid on. Nowadays, it does not cause difficulties to track which songs have been downloaded and thus to establish a key under which those royalties could be  distributed.

Additionally, shutting down Napster would not solve the problem of other services quickly evolving and proceeding business the exact same way Napster does. As a consequence, the Congress is in charge to pass adequate laws that keep pace with the time of the Internet. The RIAA and the record companies simply try to defend their position with the excuse that under the Faire Use doctrine the marked would be harmfully changed. They should keep in mind that the Copyright Act and the Faire use doctrine is not to guarantee their influence on the market, but to enhance and encourage creativity.