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Law Professor Marci Hamilton On The Napster Ruling February 13, 2000 More chat transcripts ------------ Edward Lazarus - Medical Marijuana Edward Lazarus - Bush/Supreme Court Anthony Sebok - IBM/Holocaust Julie Hilden - KKK/Freedom of Speech Charles Compton - Microsoft John Dean - Rich Pardon Kevin Grierson - Napster Marci Hamilton - Napster Robert Precht - Embassy Bombings Yonah Alexander - Lockerbie Jonathan Nelson - Embassy Bombings John Dean - Bush Transition Victor Williams - Elections/Supreme Court Edward Lazarus - Elections/Supreme Court Michael Dorf - Elections/Recount John Dean - Elections/Watergate Catherine Christophillis - Drugs/Pregnancy Jennifer Granick - Drugs/Pregnancy Kevin Grierson - Napster Trial Ed Masry - Erin Brockovich Piere Thomas - Wen Ho Lee Lauren Gelman - Internet/Speech Anthony Sebok - Firestone Tires Neal Katyal - Clinton Sanford Levinson - Election Ruti Teitel - Ousted Leaders David Thibodeau - Waco Michael Dorf - Supreme Court Byron Sage - Waco David Linder - Scopes trial Marci Hamilton - Supreme Court Thomas Jurgensen - Human Genome Jeffrey Rosen - Privacy issues Solomon Wisenberg - Death penalty Ted Conover - Sing Sing prison Matthew Glavin - Clinton disbarment Anthony Sebok - Tobacco litigation Douglas Lichtman - Music copyright David Martin - Elian case

Marci Hamilton, a constitutional law professor at the Benjamin N. Cordozo Law School in New York and a columnist for FindLaw, joined Law Chat on Tuesday, February 13, 2001, to discuss the Napster decision. CNN provided a typist for her. The following is an edited transcript of the chat.

CNN Host: Welcome, Professor Hamilton.

Marci Hamilton: Thank you it is nice to be here.

CNN Host: Can you describe the arguments Napster attorney David Boies made to the court and why the judges ruled against the company?

Marci Hamilton: There were a number of arguments made by Napster. One of them is that there is evidence that Napster is good for the music industry. The 9th U.S. Circuit Court of Appeals, along with the U.S. District Court, rejected that argument. Second, the 9th Circuit rejected Napster's claim it is simply providing sampling. Third, the court rejected the claim that this is just space-shifting of sound recordings. Those were the arguments where the court might have had some latitude, but applied existing law in a straightforward manner.

Question from Thing3: Where does it stop? I get copyrighted material sent to me everyday in the form of jokes cartoons music, etc. How far will the corporations go in protecting their "interests"?

Marci Hamilton: The question in the Napster case is only the copyright owner's right to stop complete copying of complete works by the tens of thousands. So the current sharing of portions of works or of individual jokes does not rise to the same level of copyright infringement.

Question from Deejay_Jeff: As a nightclub deejay, I use Napster to get music early and then buy the music when it comes out. What exactly does this latest ruling mean to us? When, if at all, will Napster have to pull the plug, so to speak?

Marci Hamilton: Napster will have to cease providing any sound recording the recording industry has claimed copyrighting as soon as the district court issues the revised injunction. That could be within a week or within a month.

Question from fraktol: What are the chances that existing law made be modified to accommodate Napster? Or will new laws have to be written?

Marci Hamilton: The Napster defendant has said that it will be going to Congress to ask for amendment and that is where this discussion belongs. Napster did not have the law on its side from the beginning. And to legitimize its system it is going to have to ask for copyright law amendment.

CNN Host: How likely is it that Congress would take up copyright issues quickly enough for Napster?

Marci Hamilton: It is my view that we should not change existing law until we have a clearer vision of the Web environment. The ability to police copyrighted works is in its infancy, but will surely develop. So I think that Congress should establish a commission to study these issues, but should not act for at least several years. What is at stake here is not Napster after all, but rather a marketplace of creative works for the people.

Question from Will: Will the stay of the injunction remain in effect through the en banc [full court] reconsideration and a petition for writ of certiorari to the Supreme Court.

Marci Hamilton: The en banc court would have to decide on whether to keep the injunction in place if they were to grant rehearing. If a rehearing petition is filed, the decision as to whether to file the U.S. Supreme Court can be delayed. It is my view that further appeals are highly unlikely to advance Napster's cause.

Question from Whitikau_CNN: If Napster is told to switch off the servers, won't Napster users just switch to other similar services?

Marci Hamilton: That's possible. But those services are now on notice that they are in violation of federal copyright law, which provides for injunctive, monetary and criminal penalties.

Question from devildel: How does it become Napster's responsibility to police who has a right to copyrighted material?

Marci Hamilton: They have sponsored a system that is devoted to wholesale copying of creative works and therefore are the cause of massive infringement. If they know of copying, which the court says they do, they are responsible to make sure that the copying stops. This is standard copyright doctrine.

Question from Haley-CNN: Yesterday I learned there are even audio books on Napster. Will their authors be next in line as far as copyright goes?

Marci Hamilton: I would be surprised if any content owner did not sue in the wake of the 9th Circuit's decision.

Question from Deejay_Jeff: With regard to Napster as a company: We have all heard that Napster is pouring thousands of dollars into legal fees. How do they make money? They do not charge users a dime. There is no advertising banners on their Web site or software interface. How do they make money?

Marci Hamilton: Right now they appear to be struggling to find the right model. The partnership with Bertelsmann is making it possible for them to stay afloat for the time being. But even if the 9th Circuit had ruled in Napster's favor, they still face this difficult question of how to make money on a service that they were offering for free.

Question from Jrock: If the court makes a strong, definitive interpretive ruling, will that ruling have the same force as law?

Marci Hamilton: The courts enforce the laws that Congress makes. The 9th Circuit could have exceeded its power by fabricating new copyright law. It wisely chose not to do that.

Question from Hippieman: Isn't this lawsuit really pointless? I mean once (or if) Napster is shut down, 10 more programs will appear. And there has always been other ways to get MP3s.

Marci Hamilton: The problem with that theory is that each of those sites will bear the same copyright liability that Napster is carrying.

Question from ShowTime: Why must technology, [such as] readily available MP3 files, be put on hold for a law to be introduced, taken effect?

Marci Hamilton: There is no inherent right in novel technology to violate pre-existing law. In a system of the rule of law, laws have to be changed by orderly practices and not simply because of trends. In any event, Napster now looks like the only game in town, but the Web environment will rapidly continue to change over the next several years.

Question from Katia: Is any of this retroactive? Are my son's current Napster recordings now illegal?

Marci Hamilton: There is no question that your son's recordings were illegal from the beginning, but it is impossible for the industry to police every private user. So it has to be content with only suing the players like Napster that create the conditions for the infringement.

Question from devildel: So how are videotape [recorder] makers not responsible for users making tapes of videos in their homes?

Marci Hamilton: That is a result of a U.S. Supreme Court decision in the early days of video recording equipment. At the time it was plausible that VCR use would only be dedicated to time-shifting television programs. We now know that that technology does create the conditions for direct infringement. With this new knowledge it would be possible to argue that VCR equipment is now partially liable, as a contributor, for copyright infringement.

Question from hi: What is going to happen to Napster?

Marci Hamilton: Napster has two options. It can shut down. Or it can start charging its users a fee that will stream back reasonable royalties to the creators of its content. It could also go to Congress and ask for special treatment under the copyright law. It is my view that is not in Napster's interest to continue to push the litigation.

Question from overlytechnical: Will a new hearing be needed for the trial court to have the information necessary to fashion a new order, or are sufficient parameters laid out in the appellate court opinion for the trial court to issue a new order immediately?

Marci Hamilton: I would be surprised if an additional hearing was required. The district court should have plenty to be able to fashion the injunction as quickly as possible.

Question from fraktol: How do you anticipate that copyright law will change in order to accommodate the Internet?

Marci Hamilton: I think it is hard to know how it ought to change until we have a better grasp of the Web environment and the realistic possibility of keeping others from illicit copying. If the technology can replicate the sorts of controls we have in the real world, then there may not be a necessity for a great deal of amendment.

Question from JG24Fanatic: If that is the case, why not sue the people who made the MP3 conversion software and playing software like Winamp?

Marci Hamilton: Universal did sue MP3.com on that very theory. And when it was apparent that MP3.com was likely to be held liable, the two parties settled. In light of MP3, the Napster decision is not particularly surprising.

CNN Host: Do you have any final thoughts for us today?

Marci Hamilton: I respect those who have become attached to Napster and its convenience, and I think those people should be talking actively with Congress about what makes the peer-to-peer file sharing so attractive.

At the same time, the creators of our valuable music and the recording industry also need to be talking to Congress about the conditions that are necessary to ensure a diverse quantity and high quality marketplace of music. The time has come to have a wide-scale public debate.

CNN Host: Thank you for joining our discussion today, Professor Marci Hamilton.

Marci Hamilton: Thank you.