Why Napster is or should be Legal

By The Devil's Advocate

Napster says that finding and downloading copyrighted songs for free is protected by law because Napster members are individuals and the songs are not for commercial use.

A recent federal court case that decided some noncommercial copying of music is protected by law, which Napster says even extends to making a song available for thousands of random online users to download.

The RIAA cited surveys that it said proved online file-sharing is already cutting into CD sales. Napster responded with its own surveys that says online free music actually helps spur CD sales.

Napster contends that song downloads are legal under the same law that protected the first MP3 player from a different RIAA suit last year. That law, the "Audio Home Recording Act," bars copyright suits for noncommercial use by a consumer" of an "approved" recording device or medium.

Napster is arguing that its service should have this same protection. The movie industry had sued Sony for producing a machine that could make illegal copies of films, but a court ruled that VCRs had other, legal uses as well. Napster contends that it too can be used for other legal purposes, such as marketing or promoting songs.

Napster's potentially most powerful argument, however, is that the labels have abused their market power by blocking alternative channels of music distribution, and according to antitrust law: "If you use copyrights to achieve an anti-competitive purpose, you lose the rights to them."

Napster has obtained record company documents that show the RIAA is "misusing copyrights for anti-competitive purposes," which means the labels have lost their rights to sue to enforce their copyrights.

The "Big Five" record labels: Sony, EMI, BMG, Time Warner, and Seagram's/Universal, were recently cited by the Federal Trade Commission for collective pressure tactics that have boosted the price of CDs.