posted Aug 21, 2000

TheStandard.com: Napster to Court: The Judge Screwed Up Music & MP38/21/2000; 9:18:18 AM 'If Napster thought Judge Marilyn Hall Patel disapproved of the file-sharing service when she ruled against it last month, wait till she gets a load of the company's new legal filing. 'Late Friday, Napster's lawyers filed a brief that spells out Judge Patel's "errors" in her preliminary injunction ruling, which was temporarily stayed by an appeals court just hours before the injunction would have effectively shut Napster down. While the software company is allowed to continue operations pending a hearing, the brief filed Friday in appeals court is part of Napster's attempt to remove any question of the legal validity of its service – namely noncommercial peer-to-peer file sharing.'The brief is online. Insert rant about not linking to the primary sources here, including the bit about it being the most convincing evidence that the gatekeepers do not want you to think for yourself.It's 92 pages long and I don't have time to read it now. However, what I have read is very interesting, do at least skim some of it.IMHO, by far the most importent argument is Napster's favor, which should be an immediate win for them, is that if you rule Napster as being in violation of copyright law, then nearly the entire Internet as we know it will need to be shut down. It is vital to understand this is not exaggeration... it's the simple truth.Any service that allows users to publicly post content must be shut down, as the users might post copyrighted content, there's no way to tell. You won't be able to obtain server software anymore, as it might be used to post illegal content, thus making anyone who ever touched the server software partially liable. Goodbye IRC, FTP, HTTP, even TCP.The key to this is that in Judge Patel's zeal to nail the vile, evil, horrid, theiving music pirates to the wall, she disregarded every balancing point the law makes. The law, as it stands, is reasonably balanced... there are standards for what Napster is being charged with, such as there not being any substantially non-infringing uses. This same balance was protecting a lot of people, mostly without those people recognizing it. Does Microsoft seriously worry about whether IIS (their web server) will be found as a contributory copyright infringer if somebody, somewhere uses it to server illegal copies of DeCSS? No, because the balance of the law has ensured they won't be found responsible for such activities of their users. Now that Judge Patel has ruled that balance is not relevant, the door is opened for numerous other lawsuits, that must be ruled in favor of the copyright holders in light of this precendent (if it is allowed to stand).Granted, Microsoft is big and can protect itself, and it's in no real danger. But I choose that merely to illustrate the point clearly. There are other people in great danger, who are very similar to Napster, yet should not be held responsible either. The most obvious example is IRC. This is the most popular way to exchange software, it's the next most popular way to exchange MP3s after Napster, but it's a chatting service. There's no way to stop the users short of shutting the whole server network down, anymore then Napster can magically divine whether or not Meta11ikA.mp3 points to a Metallica song, or is a perfectly legal song being shared by the author that happens to have that name. If Napster is illegal under the logic that Judge Patel uses, then so is IRC. By bandwidth consumed, it is quite likely that IRC's 'primary use' is 'piracy' of one sort or another. (By most other measures IRC's primary use is most likely chatting, as it was designed for, but you can always find a measure to do what you want it to do.)

 

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