Is Napster like your VCR?

What if an 18-year-old college student had invented the VCR as a way of trading movies with his frat-house pals? The court case launched against him might look a lot like the lawsuit against Napster founder Shawn Fanning, a battle winding its way through the courts. At stake in the case is the future of digital delivery of music, movies and any other copyright-protected work that can be stored as ones and zeroes.

In fact, the VCR comparison is more than just a metaphor: A 1984 ruling by the U.S. Supreme Court involving the then-new technology of videotape recording forms a key part of Napster’s defence against the lawsuit by the Recording Industry Association of America. The suit was launched by the movie industry against Sony Corp., inventor of the Betamax VCR standard, when that technology was just becoming part of popular culture.

To movie studios and TV networks, videotape was a nightmare come true. A device that would allow people to make copies of TV shows and movies at will, and then share these copies with their friends – what could be worse? With its lawsuit, the industry did its best to extinguish this new technology before it could spread, just as the record industry is currently trying to get the U.S. courts to put Napster out of business.

Jack Valenti, president of the Motion Picture Association of America, told the U.S. House of Representatives in 1982 that “The growing and dangerous intrusion of this new [VCR]technology,” threatened an entire industry’s “economic vitality and future security.” The development of the videocassette recorder, he said, “is to the American film producer and the American public as the Boston Strangler is to the woman alone.”

Legal experts have also pointed to another landmark case that addressed some of the same issues as the Betamax judgment, but revolved around a much earlier breakthrough in technology: the player piano. The forces of the sheet music industry went after the creators of the player piano roll, alleging that this new technology infringed on the copyrighted musical works that were their bread and butter. The Supreme Court ruled in 1908 that player piano rolls did not amount to a copy of existing works.

In the Betamax ruling, the court rejected the movie industry’s case, and within a decade the returns from video rentals had almost eclipsed the profits from the movie industry. The crux of the ruling was that the industry’s case – which hinged, as Napster’s does, on a legal concept known as “contributory infringement” – could not succeed if it could be shown that the technology could also be used for legal purposes.

Napster’s legal team is arguing that its software falls into the same category as the VCR: a new technology that can be used to reproduce copyrighted works, but can also be used in other ways that aren’t illegal. The judge in Napster’s original case said the Betamax decision doesn’t apply to Napster – if the U.S. Court of Appeal agrees, it could uphold the injunction against the company, which would effectively shut it down.

Napster’s critics, including several legal experts who have filed briefs in support of the injunction, say the Betamax case was a completely different animal. In that case, they argue, the court ruled in favour of Sony because to accept the movie industry’s argument would have meant outlawing an entire new technology – that is, the VCR. That would be going too far, the U.S. Supreme Court ruled in its 5-4 decision.

In Napster’s case, however, the record industry isn’t trying to do away with the Internet, or even digital file swapping (known as “peer-to-peer file sharing”) – it’s merely trying to shut down a software company that it says facilitates the piracy of copyrighted material. While Napster users can theoretically use it to share music they have paid for, the prosecution says the majority of files are illegal copies.

A group of legal experts who have filed briefs supporting Napster, however, are convinced the VCR case does apply. They said the trial judge’s interpretation of the Sony Betamax decision “provides the opportunity for Hollywood to essentially declare war against the technology industry,” Pamela Samuelson, a law professor at the University of California, told the San Francisco Chronicle after the ruling.

Prof. Samuelson and several other experts say the Sony decision means that “intellectual-property owners are not entitled to prohibit or exercise monopoly control over new technologies that… threaten their established business.” They said the law was not meant to protect industries from new technology, and that “having to change business plans in response to evolving technologies is what competition is all about.”

As many analysts have pointed out, even if the appeals court upholds the lower court’s injunction against Napster, file-swapping will inevitably continue through services such as Gnutella and Freenet, or through older-style means such as Usenet newsgroups or Internet relay chat. But the court’s decision will say a lot about whether peer-to-peer file sharing takes place as part of the underground Internet, or out in the open as part of the inevitable digital evolution of the entertainment industry.

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