Digital Nation: Napster's Judgment Daze

If judge's decision is upheld, users may say goodbye to file-sharing service as they know it.

[Editor's Note: This is another in a continuing series of reports about music on the Internet.]

Staff Writer Brian Hiatt reports:

Napster may have millions of users, but it's unlikely to have much of a future in its current incarnation.

Or at least that's what federal judge Marilyn Patel, who's presiding over the recording industry's copyright-infringement lawsuit against the music-sharing service, said over and over again in a written decision released last week.

The decision is an extended version of Patel's July order to remove all copyrighted material from Napster's database, effectively shutting it down while the lawsuit proceeds. That order was almost immediately stayed by an appeals court last month, and, for now, Napster lives.

But Patel's 45-page decision, in which she rejected virtually every argument put forth by Napster's lawyers, provides a glimpse of what the company will face in her court in the coming months.

In the decision, Patel — adopting an argument advanced by the recording industry — compared Napster to the operators of a swap meet in which pirated music is sold. Like the swap-meet operators, Napster is liable for the illegal activity they make possible, the judge said.

"The swap meet provided services like parking, booth space, advertising and clientele," she wrote. "Here, Napster, Inc. supplies the proprietary software, search engine, servers and means of establishing a connection between users' computers. Without the support services [Napster] provides, Napster users could not find and download the music they want with the ease of which [the company] boasts."

She also dismissed one of Napster's central arguments — that its users' sharing of MP3 files is noncommercial use protected by the Audio Recording Act of 1992 — as "perplexing" and "irrelevant."

And in response to a complaint from Napster that removing all copyrighted material from their service would necessitate shutting it down, Patel expressed little sympathy.

"Even if it is technologically impossible for Napster, Inc. to offer such functions as its directory [of files on users' hard drives] without facilitating infringement, the court must still take action to protect plaintiffs' copyright," Patel wrote.

A statement in the judge's "findings of fact," that "Napster use is likely to reduce CD purchases by college students," rejected a study presented by Napster that claims to show the contrary.

And Patel flatly declared that consumers have no right to download copyrighted songs — such as the Britney Spears hit "Oops! ... I Did It Again" (RealAudio excerpt) — in order to sample them before purchasing a CD. "The unauthorized downloading of plaintiffs' music to sample songs would not constitute a fair use, even if it enhanced CD sales," the ruling stated.

The judge also was unimpressed with Napster's argument that the service has "substantial noninfringing uses" — i.e., that Napster can be used for many purposes besides trading copyrighted files. If that were found to be true, Napster could prevail in the case.

"Any potential noninfringing use of the Napster service is minimal or connected to the infringing activity or both," Patel wrote. "The substantial or commercially significant use of the service was, and continues to be, the unauthorized downloading and uploading of popular music, most of which is copyrighted."

Napster's attorneys are scheduled to file initial arguments related to their appeal of Patel's order on Aug. 18.

In the meantime, the company had no comment on Patel's extended decision, a spokesperson at Napster's publicity firm, Girlie Action, said on Tuesday.