Mass High Tech

May 29 - June 4, 2000

In Metallica’s eyes Yale is unforgiven, too

By Henry C. Dinger

The heavy metal band Metallica charged Yale Enter Napster to “solve” this “problem.” Napster University with encouraging its students to technology indexes MP3 files of its members violate the law, and Yale quickly changed its and displays a master index. If you want a copy tune-though, not I suspect, to Metallica. of, say, Metallica’s memorable first album, “Kill’em All,” you search the index. If some Welcome to the interesting “man bites dog” other Napster member has an MP3 file of world of Napster. “Kill’em All,” you download it from that Napster can be viewed as a big online swap member’s computer to yours. Easy. meet, where music fans can exchange MP3 files Napster has become enormously popular. I of recorded music. MP3 is a compression tech- recently asked an Internet-savvy 12-year old nology that creates relatively compact digital what he thought of Napster. He grew animated audio files that retain audio fidelity. and replied, “Napster means I’ll never have to Software is readily available to convert cuts from buy another record.” audio CDs to MP3 files that can be played on Chilling words, indeed, to a record company. computers and on specialty players. The size of The recording industry responded predictably: MP3 files is small enough to make them reason- It sued Napster, charging the company with ably downloadable, even over slow connections. contributory and vicarious infringement of The problem from the music industry’s view- copyrights in the recordings exchanged through point is that an awful lot of recorded music has the Napster site. been converted without authorization from any Recording artists themselves recently got into artist or record company to MP3 format. the act as well. Metallica sued Napster, as did Take a lot of easily transferrable files with faith- rap star Dr. Dre. Dre tried to tighten the screws fully rendered popular music and introduce a bit more by purporting to sue students who them to a wired generation of young people; if had copied his songs, though no individual you’re the recording industry, you see a lot of students were named in the suit. unsold records. Metallica also sued Yale and two other Arguably, the only thing preventing MP3 files universities, claiming that the schools “knowing- from decimating the market for recorded music ly sanctioned and encouraged its students” to is the difficulty that many kids will have finding participate in a massive scheme of copyright the files they want. Given typical attention infringement by tolerating the use of Napster spans, many of them will find it easier to just software by students on university networks. buy the CD. Some universities had banned Napster, albeit But there is still something troubling about mostly because the sheer volume of traffic to Napster. The digitalization of content has long and from the Napster posed a network manage- posed a threat to artists, publishers and ment problem. Yale had imposed no such programmers because digital copies (of songs, restrictions. computer programs, books) are easily replicated without loss of quality and just as easily Within days of the Metallica suit, two of the transferred electronically. university defendants announced that they would ban Napster from their networks and What separated this theoretical threat from the third university announced severe restric- practical disaster was the absence of a legal, tions on students’ use of Napster. It is reasonable workable, mass marketing and distribution to anticipate that many other institutions of system for such unauthorized copies. Large higher learning will take similar paths of scale commercial pirates offer a viable target discretion over valor. for law enforcement efforts.

Whether Napster’s users will be deterred by the The genius of Napster is that it leaves the actual largely theoretical prospect of being sued may be piracy to consumers themselves, presenting the questioned. Regardless, they may not be given a irresistible opportunity to get something for choice; Napster recently cancelled the accounts nothing easily and with scant prospect of of more than 300,000 Napster users identified getting in trouble (Dr. Dre’s saber-rattling by Metallica as having copied its recordings. notwithstanding.) (Some have been reinstated after submitting The real cost-unanticipated by most Napster online affidavits claiming they were wrongly users-may be a long-term one: fewer bands able accused of infringement.) to sustain themselves by playing music. Napster cancelled these accounts to qualify for a Yale and the other schools ought to do more federal defense to the claims against it. The than just shut off the Napster pipe. They ought 1998 Digital Millennium Copyright Act allows to invite their students to pay closer attention to Internet service providers to avoid paying dam- these complex economic realities. ages by taking steps against infringing users. Although the judge in the recording industry suit against Napster questioned the availability Henry C. Dinger is an attorney with the of this defense, Napster has legal arguments that Boston Law Firm of Goodwin Procter. might yet save the day (absent a settlement). He can be reached via e-mail at [email protected].

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