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NEWSLETTER: Vol. 5, No. 8, May 17, 2000

Universities, Napster, and the Challenge of MP3's

by Glenda Morgan
Learning Technology Liaison, UW System Administration

One of the major issues consuming the interest of university technical and legal departments over the last few months has been the issue of student use of programs such as Napster and Gnutella to download music off the Internet. MP3 files are music files that have a compressed format. The development of the MP3 file format allowed music to be exchanged electronically. Prior to this, file sizes were too large to make this practically feasible.

The possibilities created by the development of the MP3 file format have been expanded by the development of software that greatly facilitates the sharing of files between users. Without some kind of indexing and search system, people's access to music files would be limited to what they themselves had copied or "ripped" from their own CD collection, or what they were able to find using conventional (and often laborious) searches on the web. However, programs such as Napster and Gnutella vastly increase people's access to other MP3 files. These programs essentially act as a giant database where people can search for music files of other members. When you download Napster, for example, it allows you to search for music but it also searches your own hard drive for copies of MP3 files which it then makes available to other users. Napster users (and there are many hundreds of thousands of them) thus together create a shared pool of MP3 files with a powerful search facility that makes finding specific recordings very easy.

These programs have been a huge hit with university students and this creates two potential problems for universities: a copyright issue and a bandwidth issue.

On the copyright front, the availability of MP3 files over the Internet makes the music industry unhappy. Organizations representing artists, music publishers and music companies such as the Recording Industry Association of America are uncomfortable with many aspects of the MP3 format, but they are especially and unequivocally opposed to programs such as Napster. In the United States, music is covered by copyright law just like printed materials (it works somewhat differently elsewhere, such as Europe). The song on your CD is covered by two sets of copyright. The words and music of the song itself are copyrighted and the actual recording of that song which you possess is copyrighted. In addition to the right of reproduction, the copyrights cover the right to public performance. Thus every time a recording is played -- for example, on the radio --royalties need to be paid to the license holders.

Record companies are uncomfortable with the portability and reproducability of the MP3 format and the threat that poses to their copyright interests. With digital technologies, there is the capacity to make unlimited copies that are indistinguishable from the original. These perfect copies can be not only shared with other people, but also can be manipulated easily. As digital music technology has developed, the music industry has sought to develop safeguards to help mitigate this threat. Thus, when digital audio tape recorders were introduced, the music industry managed to get laws passed that served to help prevent large-scale copying. But MP3's pose a whole new threat and the music industry has retaliated with lawsuits. Not all MP3's are actually illegal; some artists distribute them for publicity value, and an individual may make copies of music from a CD that they have purchased for their personal use.

The recording industry is determined to shut down programs like Napster. They see the program as theft -- akin to walking into a store and walking out with CD's under your shirt, on a grand scale. In large part, they are correct. Most of the music available through these programs is copyrighted, and making unlicensed copies is against the law. Thus the RIAA and a number of artists such as Metallica have instigated lawsuits citing copyright infringement. In addition, because most of the users of Napster are college students, universities have come under fire for their role in providing the students with access to Napster, and, by extension, enabling the infringement of copyright. This at least is the argument made by Metallica, who, in addition to suing Napster, have also sued Indiana University, Yale University, and the University of Southern California.

In its defense, Napster argues that it is not infringing copyright. It stores no music files on its own servers; it merely acts as a conduit, as the means by which people obtain music from a multitude of users around the Internet. However, most copyright lawyers believe that Napster is not in a strong legal position. Most argue that Napster's defense is likely to rely on the 1984 case Sony v. Universal Studios. Here, the motion picture industry tried to stop the manufacture and distribution of VCR's, arguing that they would be used to make illegal copies of movies and TV programs. Ultimately, they lost the case, as the Supreme Court argued that although VCR's might be used in this way, they also had substantial non-infringing uses. Any technology that has such uses cannot be disallowed. In the case of Napster, it is hard to see what the substantial non-infringing uses might be, and so lawyers believe that Napster has a relatively weak case.

Universities would seem to be on stronger ground in their defense against suits charging contributory copyright infringement. In general terms, under the Digital Millenium Copyright Act, Internet service providers (which universities in effect end up being) cannot be held liable for contributory infringement for any infringing activities that occur on their networks if they have no knowledge of that infringing activity. They do, however, have to take action against such activity if informed in the appropriate way. Indiana University decided to be cautious and in response to Metallica's suit blocked student access to Napster. Indiana's VP of Public Relations Christopher Simpson argued that "it is our view that the university is not liable. But it is clear that individuals may be" (Cnet News, April 20, 2000). Until the legal issues surrounding Napster were cleared up, Indiana would play it safe. USC took a slighly different tack, warning students that they could use the software for "demonstrably legal" purposes only and only on designated computers under supervision (Cnet News, April 24, 2000).

More frequently, universities have made copyright infringement a violation of their campus codes of conduct, mentioning MP3's specifically (for example, Cornell University). Increasingly, universities are blocking or restricting access to Napster because of the strain it puts on the university network and the amount of bandwidth it uses. According to network administrators at some universities, student's recreational use of Napster accounts for over 50% of network traffic. This is of considerable concern to universities as bandwidth is a finite and increasingly expensive resource. Before being sued by Metallica, Indiana University had blocked access to Napster because of bandwidth issues. IU had worked with Napster in an effort to try to solve the bandwidth problem, but other schools have either blocked access to Napster (for example, Kent State University) or warned students against using the program (for example, the University of Chicago).

It is not clear whether the RIAA or Napster will prevail in the coming legal battles. What is clear, however, is that the new technology poses enormous challenges to the way that music copyrights are administered. New ways of thinking about copyright in music as well as new technological means for delivering music and protecting artists' rights are likely to be developed in the near future. However, in the interim, universities will continue to struggle with the issue.

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