Produced by and

Professor Douglas Lichtman Discusses the Music Copyright Lawsuit Against Napster May 17, 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

(CNN) -- Professor Douglas Lichtman from the University of Chicago School of Law joined us on Wednesday, May 17, for a Law Chat to discuss the Internet music lawsuit against Napster and other copyright related law issues. Law Chat is presented by FindLaw. CNN provided a typist for Lichtman. The following is an edited transcript of the chat:

Chat Moderator: What is the legal claim against Napster?

Doug Lichtman: The claim is a straight-forward copyright claim: that Napster is a third-party that is helping other individuals (users) to violate copyright in the various popular songs being traded online. Their defense comes along several lines. On the PR side, they are trying to argue both that this is inevitable (which might be true) and that Napster helps sell music (which is more questionable). On the legal side, their only argument is that Napster has substantial "non-infringing" uses, which is to say that the software can be used for legal actions as well as illegal ones, and so Napster should not be held accountable. If users use the service illegally, Napster would say, go after them, not Napster.

Question from JustinCredible: According to the liberal mentality, recording artists already have more money than they need, so MP3s of their music should be free.

Doug Lichtman: But where does an argument like that end? Does George Lucas lose all his rights to Star Wars just because we all know he has already made a substantial return on the idea? In general, intellectual property law is designed to allow folks to earn returns based on the quality of their contributions. So if lots of young people want to purchase Mariah Carey's music, we allow her to sell it, and we don't take away her rights just because she's been successful.

Napster is interesting in that it is basically a match-making service. It allows users who already have particular MP3 music files to announce to the world what they have; and it allows other users to search those lists and identify trading partners. Napster itself doesn't copy or distribute the tunes. It just helps users find one another.

Question from ron_s-CNN: Isn't that like suing a company for making a tape deck or a CD-recorder?

Doug Lichtman: Exactly. And we have seen cases like those-the most famous one being a suit against makers of VCRs for violating copyright in television content. Tape recorders and VCRs, though, do indeed have "substantial non-infringing uses" and so the law tends to excuse their manufacturers. Napster is in a worse position since most of the economic value derived from their service is tied to the illegal music trade. But yes, that's exactly the right analogy to be thinking about.

Question from Candyce-CNN: How can Metallica pick and choose when it approves of trading their music since they've always encouraged bootlegging tapes from concerts?

Doug Lichtman: As a legal matter, they have the option, of course. They can license certain uses (taping at concerts) while still reserving their rights in other settings (Napster). I take your question to be more on the policy side-how can they think they will get away with sometimes saying yes and sometimes saying no? On that score, I think many people agree with you. However, look at this from Metallica's perspective: taping at concerts probably helps them to publicize and sell their music; the "taping" that happens at Napster is obviously and rightly more troubling.

Question from Chicago: With the Feds already finding that music companies have engaged in antitrust practices with retailers-artificially inflating prices---who can blame people for wanting music from Napster?

Doug Lichtman: The timing on the FTC settlement does indeed make the music industry look bad; and I think you are right that the timing also has made Napster users feel more justified. But the FTC already has imposed a punishment related to the alleged antitrust violation, and that punishment wasn't "your music will be given away for free in a random distribution method called Napster". I can see that the two are related on a public relations level; but, as a legal matter, they really are separate inquiries which should lead to separate results.

Question from Angolmois: Do courts have similar objections to copying classical music, or music which is not protected by modern copyrights?

Doug Lichtman: Music that is no longer protected by copyright can be redistributed without any legal ramifications. So, too, can music where the relevant artist authorizes online distribution. So if Napster were doing what the old MP3.com did (before they, too, got greedy) -- namely distributing amateur music to help new bands develop a following -- that would be fine. The troubles here arise from the fact that Napster is working with copyrighted popular music, and at that doing so without permission.

Question from meli: What is the basis of Metallica's lawsuit and what,if any, response does Napster have to it.

Doug Lichtman: Metallica is working with the same theory we talked about right at the start: like the Recording Industry Association of America, they are arguing that Napster is contributing to the illegal activities of its users. Not that Napster is itself directly doing something illegal; but that it is an accomplice in the copyright violations of its users. Napster has two lines of defense. One is to argue (like we said above) that Napster has substantial uses that do not involve illegal activity. The other is to show that Napster meets certain specific legal requirements that, in essence, combine to show that Napster is doing everything it can to block copyright infringement. That's why Metallica dropped off that list of 30,000 users. That action forced Napster to now show that it is doing all it can to stop those users from continuing to infringe copyright. If Napster can show that (meeting a number of technical requirements) Napster could find itself immune from liability.

Question from speaker: It is my understanding that Napster is only a tool used by the Internet community to initiate file location and transfer, just like an FTP client package. With that in mind, it seems to me that the responsibility to not create MP3s (which in itself violates copyright laws) would lie with the user. Is this a fair assessment in the eyes of the law?

Doug Lichtman: Again, I think the critical point to remember is that Napster is being accused of *helping* users commit the bad act. You are right that the users themselves are also key players; but the law sometimes holds accomplices liable, too, and rightly so. The party who drives the getaway car for his bank robber friends surely shouldn't be allowed to skirt liability for bank robbery, right?

Question from Waco: Where does Napster derive its income?

Doug Lichtman: I think their ultimate model is to sell their distribution technology, and perhaps also to sell the information they gather on user tastes. (They know who downloads what, and when, and surely hidden in that data is a wealth of valuable information about how to market and price music.)

Question from MCA2113: Have there been any credible studies to determine the damages the music industry may have suffered due to the illegal distribution of copyrighted material?

Doug Lichtman: There are studies, but you are right in your implicit question: it's not so clear that they are accurate. And how could they be? It's very difficult to know if a Napster user would, in the absence of the service, buy legal music; or, instead, just listen to the radio. Remember, too, that looking at the harm to the music industry is complicated. For example, what if the music industry's argument were: "Look, if Napster is found to be illegal, they'd have to pay us in order to continue operation, and that lost income is what we are suing for."? In short, I think it's very hard to quantify the losses related to intellectual property violations.

One interesting angle on all this that we haven't really talked about is the question of whether there are extra-legal responses the music industry could use instead of turning to the courts. I bet that we all agree that litigating these matters is somewhat distasteful (not to mention slow and expensive.) But what would we think to more clever solutions? Suppose, for example, that the Love Bug was a computer virus that served only to erase MP3 files. Suppose further that it was put out by the music industry. If those things were both true, would we want to excuse the music industry for simply defending its turf?

We can vary the hypothetical in a million ways. Suppose the music industry were to log onto Napster and, instead of posting legit music, posting decoy files -- Mariah Carey not singing her latest tune, but a file that is named as if it were the latest tune but in fact turns out to be Mariah asking her fans to buy music instead of pirating it. Should the music industry be allowed to "pollute" Napster in that way? Is that smarter strategy on their side?