Chris Barton: Son of Napster is legal, rules Appeals Court judge

COMMENT

From the advent of the player piano, every new means of reproducing sound has struck a dissonant chord with musical copyright owners, often resulting in federal litigation. This appeal is the latest reprise of that recurring conflict, and one of a continuing series of lawsuits between the recording industry and distributors of file-sharing computer software."

So began a lyrical Judge Sidney R. Thomas in the United States Ninth Circuit Court of Appeals last month delivering a wake-up-and-smell-the-coffee call to the record labels.

The same court that shut down Napster has ruled that Grokster and StreamCast Networks are not responsible for users who swap copyrighted music through their file-sharing software. Son of Napster is legal.

That's because these versions of peer-to-peer (P2P) networks don't work with a centralised index and aren't just used for illegal activity.

As the good judge explained: "The technology has numerous other uses, significantly reducing the distribution costs of public domain and permissively shared art and speech, as well as reducing the centralised control of that distribution."

The full judgment is here and is worth a read because as well as clarifying the technicalities of P2P, it gives a good history lesson on the effects of new technology on old markets.

Or you can go here and listen to lawyers' for and against closing arguments.

Those who just want to get mellow with the good guys, go here and here and hear the salient parts of the defence's argument set to techno - difficult to dance to but excellent mood music for geek parties.

The best quote is when one of the judges admonishes the plaintiff's lawyer, telling him he needs to show whether the law of copyright - "the statutory monopoly that Congress has given you" - reaches into something new, namely file-sharing over the net.

"You don't solve it by calling it 'theft'. You have to show why this court should extend a statutory monopoly to cover the new thing. That's your problem.

"Address that if you would. And curtail the use of abusive language."

The judgment follows laissez- faire economics logic - leave technology be and let the market work it out.

"The introduction of new technology is always disruptive to old markets, and particularly to those copyright owners whose works are sold through well-established distribution mechanisms.

"Yet history has shown that time and market forces often provide equilibrium in balancing interests, whether the new technology be a player piano, a copier, a tape recorder, a video recorder, a personal computer, a karaoke machine, or an MP3 player.

"Thus it is prudent for courts to exercise caution before restructuring liability theories for the purpose of addressing specific market abuses, despite their apparent present magnitude."

But none of this is going to stop the Recording Industry Association of America (RIAA) going after the music sharers themselves. The software and the networks may now be legal - but using them to swap copyrighted songs is theft.

The RIAA said last month it would sue another 896 file-swappers - 744 fresh P2P users and 152 already sued but who haven't settled out of court.

That makes it close to 4000 people the record labels have gone after - so far only in the United States. It shows they mean business, but you have to wonder how long such a strategy - suing your customers - can last.

There are signs, too, that the record labels themselves may be overstepping the law. The French consumer association UFC-Que-Choisir is suing EMI over its copy protection technology that stops customers from making personal copies of their CDs. That privilege was granted to French consumers by a 1985 law, and is similar to US copyright law's "fair use" provisions.

"Format shifting" such as transferring music to a portable MP3 player is also allowable in proposed changes to New Zealand's copyright laws.

One wants to think this is the dawning of a new age of copyright. If the Appeals Court is right, the market left to its own devices will eventually come up with a way to "monetise" file-swapping - just as it did when songs were first blasted out over the radio for free.

But you know there's going to be a lot more suing and countersuing before the fat lady sings.


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