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Napster interested in compensating artists for works, it says

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    NMU         WASHINGTON, D.C.         Copyrights & Trademarks         Sep 27, 2000    

Napster interested in compensating artists for works, it says

  • The online music site wants to protect copyrighted works and find a way to pay artists, an attorney for the file-sharing website told a panel discussion audience.

The music-sharing web site Napster supports copyright laws and is interested in setting up a system to compensate artists for their copyrighted works, an attorney for the online company told a group of 150 attorneys and students at a panel discussion in Washington Sept. 26.

“We would be happy to support technology to protect copyright,” said Gary Slaiman, a partner at Swidler Berlin Shereff Friedman, the law firm which represents Napster. Slaiman also said the major record labels have rebuffed Napster’s offer to enter a business venture together. “You would think with [Napster’s] 30 million customers, they would want to talk to us,” he said.

Napster is an Internet website that allows users to freely access each other’s music files. Napster itself does not copy or transfer these files, but allows users to share them using “peer-to-peer” file-sharing technology. No safeguards are in place to prevent users from trading copyrighted files.

The seminar, “Copyright in Cyberspace: The Napster Quandary,” probed the limits of appropriate legal protection for artistic works in cyberspace. Moderated by attorney David Kendall, the panel included attorneys, a professor and a grass roots activist.

Slaiman said the major record labels fear technological changes and have been slow to adapt to the Internet.

Mike Huppe, a panelist and attorney for the Recording Industry Association of America, tried to dispel the Luddite label.

“We have no problem with sharing information in an efficient manner over the Internet,” Huppe said. “We have a problem with using technology in an illegal manner.”

Huppe admitted that record companies were several paces behind Internet entrepreneurs in the race to provide music over the Internet, but said this was because the labels were attempting to preserve intellectual property rights while using the new technology.

The RIAA, which represents major record labels, sued Napster for copyright infringement in December 1999. Seven months later, a federal judge in San Francisco issued a preliminary injunction against Napster, ordering it to prevent trading of the major label’s copyrighted songs on its service. Napster claimed the order would have effectively forced it to shut down the site. Two days later, the U.S. Court of Appeal in San Francisco (9th Cir.) stayed the lower court’s injunction. A three judge panel of the appeals court will hear oral arguments on October 2.

Huppe described his clients’ claims as contributory infringement and vicarious infringement, neither of which involve actual copying by Napster. A contributory infringement claim will stand if the defendant knowingly allows and induces the copying. A party is liable for vicarious infringement if it has the right to supervise the person doing the copying and derives an economic benefit from the copying.

Alleging Napster has turned a blind eye to the ongoing infringement, Huppe said the company “can’t say with a straight face they are unaware of the high degree of copying over the Internet.”

“This is a business premised on trading huge amounts of intellectual property they have no right to own,” he said.

Some panelists and audience members challenged the notion that free access to copyrighted works would spell the end of creativity. Copyright law, like patent law, is protected in the U.S. Constitution, granting Congress the power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Copyright statutes are premised on the notion that a financial incentive is necessary to stimulate creative output, an idea not universally shared by the panel.

“I think we are in the midst of the greatest creative outpouring in the history of the world,” said David Post, a law professor at Temple University. With such technology, “creative activity will not cease; it will in fact explode.”

Post recommended the RIAA should not attempt to shut down Napster, but should seek better technological measures to protect its members’ copyrighted works. Post also said there should be a better effort to dissuade Napster users from copying without payment.

Jennifer Toomey, the executive director of the Coalition for the Future of Music, an organization representing interests of lesser-known musical acts, said fledgling artists use outlets like Napster to promote their music because mainstream labels and radio stations often ignore new acts. The Coalition supports changes in technology, but believes the artists deserve compensation.

“We are in a transition,” said Slaiman, the attorney representing Napster. “Ultimately there has to be a method for compensation.”


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