Singing The Napster Blues
August 1, 2000
Napster typifies the unique intellectual property issues facing schools,
colleges and universities in the Internet age. The Napster Web site, developed
and heavily used by students, presents the issue of whether educational
institutions will be liable for their role as owners or providers of computer
systems on which thousands of copyright infringements take place every day.
What Is Napster?
The Internet has revolutionized the distribution of music. It allows fast,
unlimited file distribution, especially with high speed connections, from MP3
sites. MP3 is a compression technology which significantly reduces the file size
of a sound recording and allows for fast and efficient conversion of CD
recordings into computer files that can be downloaded over the Internet.
Napster introduced a new element called “peer-to-peer file sharing,”
which allows users to trade files with each other. Napster’s servers contain
only simple directories of the digital music libraries on the hard drives of
thousands of registered users. The digital files of the songs themselves remain
on the user’s hard drives. Napster enables users to search and download music
files from the computers of other users. Many of these computers are on the
campuses of schools, colleges and universities.
The recording industry has sued Napster for contributory copyright
infringement because more than 87% of the files downloaded by Napster users are
infringing. Napster claims millions of recordings on its service. The rock band
Metallica also has sued Napster and some of the universities whose students use
Napster. Yale and Indiana University were dropped from the Metallica lawsuit
after they banned students from using Napster. Other universities banned Napster
from their computer networks because downloading of music files consumed so much
space on their connections to the Internet that students could not get their
work done.
A Safe Harbor?
Colleges and universities may think they can protect themselves from
copyright problems associated with Napster through the educational “safe
harbor” provided by Digital Millennium Copyright Act. In 1998, Congress carved
out a limitation on copyright infringement liability for non-profit educational
institutions that provide online services to their faculty members or graduate
students. Specifically, the Act provides that a faculty member’s or graduate
student’s knowledge of infringing activities will not be attributed to the
institution if it meets four criteria:
- The faculty member or graduate student must be an employee of the
institution performing a teaching or research function.
- The infringing activities must not involve the provision of online access
to instructional materials required or recommended within the preceding years
for a course taught at the institution by the faculty member or graduate
student.
- The institution must not have received more than two valid copyright
infringement “notifications” against the faculty member or graduate student.
- The school must provide all users of its online system or network with
information that accurately describes and promotes compliance with U.S.
copyright laws.
Conclusion
The “safe harbor” provision outlined above applies only to acts of
faculty and graduate students. It does not protect against acts of undergraduate
students, who form the large majority of Napster users. Accordingly, prudent
universities will be very cautious about permitting Napster use on their
networks in the current legal environment. A critical hearing in the Napster
case was held in July 2000. In the next few months, the court will decide
whether Napster can remain in business. The case may also resolve the potential
liability of educational institutions for hosting Napster files on their
computer systems. Until then, educational institutions are advised to be
vigilant in responding to notifications about copyright infringement by the
music industry.
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