Recording industry calls Napster defense "baseless" Music & MP37/14/2000; 11:51:54 AM '"Napster...uses euphemisms like 'sharing' to avoid the real issue," the RIAA wrote in its brief. "The truth is, the making and distributing of unauthorized copies of copyrighted works by Napster users is not 'sharing,' any more than stealing apples from your neighbor's tree is 'sharing.'"'I was thinking about this on the way to work this morning. Let's look at the situation again, and really break the situation apart:The basic arguments:Napster basic claim to legality is that music sharing amoung individuals is perfectly legal, and that is exactly what Napster is.RIAA's basic claim to the illegality of Napster is that it is nothing but a tool for piracy. While it is trivially false (there are legal uses), it is their defense nonetheless and deserves to be taken into account. I'm going to defend the softer argument that counter to Napster's claims, not all use of Napster is necessarily legal.In most Napster transactions, there are three parties:

  1. Napster-the-company, which provides the Napster-the-software search engine for public use
  2. The person downloading the MP3 file
  3. The person providing the music file
Let's look at each of them:
  1. Napster-the-company: All Napster does is, in essense, take the user reports of the files they have and make it publicly available and searchable. Music never even flows through their servers. I think that while RIAA may want to shut the Napster system down, they really can't fault anything Napster-the-company is doing. They just aren't responsible for the use by their users... and frankly I'd advise RIAA not to pursue this. (Or do they want one of their members to get hit with a high-profile lawsuit on the next school shooting because the shooter listen's to one of the label's bands?)Speaketh the RIAA's lawyers: "Napster is no more subject to (these legal protections) than would be a defendant whose business consisted of providing customers with a VCR, copyrighted movies, and a room in which to copy them." Sorry, Napster never provides copyrighted movies, it's more like an internet Kinko's. Conclusion: Napster the company is clean... and I hope no stretching of the definition of "providing" will allow Napster to be considered as "providing" music. That would really screw many other things up.
  2. The person downloading the file: Inasmuch as sharing with a friend is legal, the person downloading the file would seem to be operating in exactly the same capacity. The downloader is clean.
  3. The person providing the file: Here's where it gets tricky. Unlike the person downloading a file, there is a clear difference between a song provider on Napster and a buddy that gives you a copy of something, and that difference is scope. Giving your buddy something has a scope of one. Providing a song on Napster has a scope of 20 million and rising. There is a very real difference in nature between the two.This may count as distribution, which is one of the importent components of copyright. Therefore, it may technically be illegal to offer files for download on Napster that you do not have distribution rights too... even though the person downloading the file is not in legal trouble. Wierd.
My point: There may well be a part of the whole Napster system that is not perfectly legal. What does distribution mean in the era of the Internet? I believe this is the fundamental disconnect involved with the issues surrounding Napster. Is Internet distribution more like person-to-person sharing, or person(-or-group)-to-large-group sharing? While it's obvious that the answer is probably that elements of both will exist in the final answer, it's not obvious what the final answer itself will be. This same problem is also at the root of today's Australia story. Is internet webcasting like sharing a video file with a friend, or more like broadcasting something on TV?