Why Napster is illegal

By The Devil's Advocate

1. Unauthorized use of copyrighted material is illegal.

2.ÊIf you don't hold the copyright or have authorization, you can't even give away copies of the soundÊ recording.Ê In addition, the ÒNET Act" clarified that even if sites trade in infringing materials or donÕt charge or make a profit, they still may be criminally liable. Ê

3. You can't put full-length sound recordings on the Internet for others to download without permission from the copyright owners of the sound recording and the musical composition. Ê

4.Ê Downloading sound recordings, even if itÕs just for personal use, is still a violation. Personal use copying was considered by Congress when it enacted the Audio Home Recording Act of 1992 (AHRA).Ê The AHRA provides that manufacturers of covered devices must pay a royalty on each device and piece of media sold, and implement a system which only allows first generation copies. In exchange for this, the manufacturers of the devices receive immunity from a copyright infringement suit. The AHRA gives consumers immunity from suit for all analog and digital music copying, so long as it's done with AHRA covered devices, and not done for commercial use.Ê However, computers are not AHRA covered devices. The AHRA only covers devices that are designed or marketed for the primary purpose of making digital musical recordings.Ê Multipurpose devices, such as a computer, are not covered by the AHRA.

5.Ê Liability for copyright infringement is not limited to the persons who created the infringing sound file.Ê A linking site may be contributorily liable for copyright infringement occurring at the sites to which it links. We believe that providing direct access to infringing works would constitute material contribution to infringing activity. In the case of a linking site, providing direct access to infringing works may show a right and ability to control the activities of the direct infringer, and that receiving revenue from banner advertising may be a financial benefit showing commmercial use.

Ê 6. ÊUploading and downloading full-length recordings without permission almost certainly is not "fair use". "Fair use" is a principle under federal copyright law that allows people to reproduce, distribute, adapt, display and/or perform copyrighted works under certain circumstances, without explicit authorization from the copyright owner. When determining "fair use", a court will typically look to: the nature of the use (commercial or not), the length of the excerpt (how much of the whole work and which part), how distinctive the original work is, and how the use will impact the market for the original work.Ê "Fair Use" man be short excerpts for educational purposes, or for criticism or comment. There is no set formula for determining Fair Use.

7.Ê Moving an unauthorized music site to a server outside the U.S. would still be illegal, because U.S. law applies when the uploading and downloading takes place in the United States, even if the server is physically located in another country.Ê Second, the copyright laws of foreign countries are, in many cases, similar to those in the United States.

8. If you reproduce, offer to distribute and/or distribute full-length sound recordings without a license, you are violating copyright law. Ê

9. In the U.S., almost every work created privately and originally after March 1, 1989, is copyrighted and protected whether or not it has a notice.

Ê 10. There is a difference between ÒfreeÓ online authorized music and ÒstolenÓ online music, that is put up without authorization.Ê