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Napster, DVD cases raise copyright questions in digital age


WASHINGTON (CNN) -- For more than 200 years, the United States has had copyright laws to protect the ownership rights of the creators of expressive works like fiction, music and art, and to ensure that the creators are compensated adequately when the work is used by others.

With the advent of the Internet and the digital age, society is being asked to determine how copyright protections apply in a time where creative works are widely available in cyberspace and the technology to access such material improves nearly daily.

Experts say the high-tech context in which copyright questions are being raised -- as exemplified by the Napster case in California and a DVD-encryption case out of New York -- also shows that the law is always a few steps behind technology.

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Of the two, the Napster case received the most publicity because it involves highly popular software that millions of people around the world use to share music for free by dipping into someone else's hard drive.

The Recording Industry Association of America filed a lawsuit against Napster in December, accusing the company of encouraging the illegal copying and distribution of copyright music on a massive scale. Time Warner, the parent company of CNN and is a member of the RIAA.

The case also pits the behemoth $40 billion music industry against a California company established by a teenager. And the case raises fundamental questions about freedom of information and activity on the Internet and what copyright protections musicians have or do not have in cyberspace.

For those and other reasons, legal experts point to the Napster case as crucial to the future of cyberspace and copyright law in the United States, the world's leader in high-tech issues.

But will the Napster case make new law? Experts say that is not likely.

"(The case) underscores the need for companies that are using Internet technology to understand that they can't simply ignore existing intellectual property laws," said Steven Lieberman, a Washington copyright attorney. "This Napster case doesn't make new law. It applies longstanding law to a new technology."


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According to Michael Madison, a copyright scholar who teaches at the University of Pittsburgh law school, copyright applies only to creative works, meaning books, plays, movies, music -- in short, any work where someone had to exercise their powers of creativity and imagination.

While fiction is an obvious example of a creative work, the courts generally will extend copyright protections to any work where even a slender element of creativity was involved, Madison said.

"One consequence of that is that almost all computer software is protected by copyright law, even though many people regard software as the electronic version of a machine. And since the Internet is constituted entirely of software, the Internet, among other things, amounts to an enormous aggregation of copyrighted works," he said.

U.S. copyright law prescribes the scope to which such works are the exclusive domain of the creator and whomever the creator shares the ownership with, for instance, a publisher.

The Napster case and its implications

The 9th U.S. Circuit Court of Appeals in San Francisco is expected to hear the Napster case. The judges must decide if Napster Inc. can be held liable as a contributor to copyright infringement by those who use its software.

The appeals panel granted Napster's request for a stay of an order that would have effectively shut down the site on July 30.

Napster logo
The future of Napster is unclear as copyright laws become the focus when the case is heard before the 9th U.S. Circuit Court of Appeals  

At its core, copyright law says that the creators of certain literary and artistic works have the right to ensure that unauthorized people do not use their work for unauthorized purposes. The creators hold the copyright. They can give up their exclusive right to publishers or other authorized entities for a limited time or permanently.

Legislation and court rulings have held that people have a significant right to make use of exceptions within the copyright law to avoid lawsuits.

At the heart of the Napster case is whether Napster Inc. is facilitating personal use of the music by giving people the means to download music for free or whether Napster is knowingly contributing to large-scale copyright infringement by its users, Madison said.

Experts also said the music industry went after Napster partly because it was impractical to go after the millions of Napster users individually.

"This Napster case doesn't make new law. It applies longstanding law to a new technology."
— Steven Lieberman, copyright attorney

Adam Powell, vice president of technology and programs at the Freedom Forum, said Napster had become so wildly popular and so visible that it had become an icon of sorts. By suing Napster, the music industry was setting an example to Napster-like sites.

Napster has "almost become a common noun, like Kleenex or Xerox," Powell said.

The DVD case

The DVD case pits eight Hollywood movie studios against a journalist who ran a hacking Web site. At issue is the availability of software that makes it possible for computer users to descramble the code designed to prevent DVDs from being copied.

Using the software, users can copy movies from digital versatile discs to computer hard drives or discs and other recording technology.

DVD player
The ability to copy movies from new software via digital versatile discs, or DVDs, is sparking another case involving copyright  

First Amendment rights of computer workers were raised during the trial, with a computer science professor arguing that preventing code from being made available would limit his ability to perform his job.

The court must decide in the civil case whether eight major movie studios can stop Eric Corley from making software available online or posting links to it so that people can copy films that are in DVD format.

More legal documents spelling out copyright law and First Amendment protections are to be filed later this month, after which a decision is expected.

The doctrine of fair use

Madison said both the high-profile cases involve the concept of "fair use," which came into being in the 19th century.

The doctrine essentially states that people have the right to use copyrighted material under certain circumstances. The cases also pose questions as to how the fair use doctrine relates to the First Amendment, Madison added.

The Supreme Court ruled in 1984 that "time shifting" -- taping programs on VCRs for watching later -- is not a violation of copyright  

For instance, students will likely not be penalized for making copies of a few pages of a textbook for studies because that constitutes a "fair use" of the material, he said.

But if someone makes multiple copies of the entire textbook and tries to sell it at the street corner, courts would likely view that as a clear copyright infringement because the original work was duplicated without permission and used for profit, without the copyright owner getting a cut of the spoils.

The mass use of the Internet since the early 1990s has made it possible for people to access books, movies, stories, dramatic works, and other intellectual property directly through their computers -- many times for free, as was the case with the Napster software.

Do such downloads constitute fair use? Or do they, as the creative industry says, allow massive copyright infringement by users that must be stopped by the courts immediately?

Napster has "almost become a common noun, like Kleenex or Xerox."
— Adam Powell, Freedom Forum

Those are questions of paramount importance in the area of copyright law, experts said.

Facts about copyright

The first copyright law was adopted in the U.S. in 1790.

Current copyright law for the most part is spelled out in the Copyright Act of 1976, an intricately complicated piece of legislation.

In a case considered the legal predecessor for the Napster case, the movie industry sued the Sony Corp. Hollywood claimed that Sony's Betamax video cassette recorders allowed people to engage in copyright infringement by allowing them to record television programs to watch later.

mp3s downloading
Napster has given way to other music swapping sites, increasing the scope of sites where people can go to download songs  

But the Supreme Court ruled in 1984 that such "time shifting" -- taping programs for watching later -- is not a violation of copyright.

In 1992, Congress passed the Audio Home Recording Act, which allowed people to make copies of music for personal use. The law was passed in response to the introduction of digital audio tape recorders, just before the Internet revolution.

The law assured consumers that they could not be sued for copy infringement for making "noncommercial" copies of recordings for their personal use, Madison said.

That was an attempt to modify copyright protections to what at that time was a new technology, experts said.

In 1998, Congress passed the Digital Millennium Copyright Act to address the tricky issue of copyright protections in a digital environment.

An important aspect of that law was anti-circumvention protection, which barred people from circumventing password-protected and other secure Web sites that provide access to creative works.

In 1998, Congress passed the Digital Millennium Copyright Act to address the tricky issue of copyright protections in a digital environment.

The law said the copyright owners could file civil lawsuits against those who break into such secure Web sites. This is the directly applicable law in the DVD case.

Both the Napster and DVD cases raise free speech, fair use and copyright issues, which makes them important to future legal and legislative action in the high-tech area, Madison said.

The First Amendment, at its core, generally protects people against governmental intrusion into what and how they speak, think, write or act. Copyright law could be construed as placing limits on those freedoms by saying people have to pay to use some creative material, Madison said.

The hallmark of the copyright and intellectual property issue has been to figure out ways to balance the free speech and fair use doctrines, Madison said.

"If you, in the course of exercising First Amendment rights, have some occasion to make use of some material that is protected by copyright, you do not want to be accused of infringement of copyright," he said. "The key in both cases is that the technology of First Amendment expression is also the technology of copyright infringement."

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