The Challenge Of Making Napster Legit

As the final details of the injunction ordered by the Ninth Circuit Court of Appeal is being hammered out between the parties and the district court, attention is already being shifted to the future. Napster must consider adapting to a business world that complies with the law.

The Court of Appeal found Napster to be liable for what is called vicarious copyright infringement, because the Internet service does not police an operation that enables its users to infringe copyrights.

The appeals court therefore ordered the district court to fashion an injunction prohibiting Napster from allowing its users to download copyrighted material and to police the system to ferret out postings of unauthorized music, to the extent possible under existing technology.

There are numerous problems associated with legitimizing the Napster operation.

First of all, licenses must be secured from as many copyright owners as possible to provide the widest base of legitimate content. Licenses from record companies can take the form of blanket licenses allowing Napster to permit the downloading of all material owned by that record company either on a flat-fee basis or per-use basis.

Since the model for making copies of copyrighted music when records are involved (the mechanical royalty) is well-established and fixed at the so-called statutory rate (currently 0.755 per copy), a similar model applying to downloads will probably be adopted. The same is not true in respect to sound recordings. Royalties will need to be negotiated with each owner, without a standard royalty as a framework.

The second problem is developing a system to bar unauthorized content from the system. And this presents a far greater technological problem. Software must be developed to search all files made available on the system for peer-to-peer sharing and bar those that are not licensed. The sheer number of files being transferred creates an enormous problem in this regard.

Additionally, assuming licenses are acquired from a large number of copyright owners, how can the system distinguish between the content for which licenses exist and that for which no licenses exist, especially if no uniform titling system is used? Some method needs to be developed to identify licensed content and allow it onto the system, while keeping off unlicensed material.

The third problem area involves the development of software acceptable to licensors to track all downloads and account to the owners for whatever...

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