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.