Napster Plays Like an ISP

May 10 2000

In defending itself against the legal onslaught of the recording industry, Napster argues that it is simply an Internet service provider. On Wednesday, it started acting like one.

In compliance with the "notice and take down" provision of the Digital Millennium Copyright Act of 1998, Napster has blocked the passwords of more than 300,000 of its users alleged to have swapped songs by the rock band Metallica.

Metallica demanded that the users be removed from the system last week, when it delivered to Napster's San Mateo, Calif., offices 13 boxes of documents listing the user names of people who allegedly violated the band's copyrights.

"Napster has taken extraordinary steps to comply with Metallica's demands," Napster attorney Laurence Pulgram said in a statement. "Napster has always stated that it would act in response to notice from copyright holders, and it has lived up to that commitment in good faith."

Wednesday's move bolsters Napster's claim that it should be treated like an ISP in the eyes of the law. ISPs are not held responsible for illegal content flowing across their networks, but if they are notified of a case of alleged infringement, they are required to act.

"[Napster] is trying to comply with the requirements of the DMCA in ways that they can," says Seth Greenfield, a partner at McDermott, Will and Emery. "The ISP is not required to be judge, jury or even policeman. They are more like a traffic cop. If a copyright owner gives a sworn statement that they own the copyright and have good reason to believe someone is infringing, the ISP can take down the material."

The DMCA provides a procedure for users to dispute Metallica's allegation of infringement. Blocked users can appeal to have their accounts reinstated.

But there's nothing to stop Napster users whose accounts were blocked from reinstalling the software and choosing a new user name. As of Wednesday afternoon, there remained dozens of Metallica songs on the Napster system available for immediate download.

Metallica could sue individual Napster users personally if they continue to trade copyrighted songs after being notified. However, the band is unlikely to take this step. "Metallica is not going to sue its fans no matter how delighted Napster would be to see that," says Metallica attorney Howard King.

Napster came under legal siege in December, when the Recording Industry Association of America filed suit on behalf of 18 major record labels. Then in April, Napster was sued by Metallica and then by rapper Dr. Dre. In response to those suits, Napster is seeking shelter in one of the DCMA's "safe harbors," which gives ISPs some protection from liability for content hosted on or routed across its servers.

Napster's strongest defense, however, might have nothing to do with the DMCA, which is narrow in scope and largely untested. Napster's best chance might be the precedent set by the Sony Betamax case, which established the legality of the video-cassette recorder even though it can be used for illegal purposes. Similarly, Napster's service can be used to copy illegal MP3s, but as its lawyers might argue this summer, it also can be used for legal purposes.

As the case meanders toward trial, at least a dozen other file-swapping services are accelerating the rate at which copyrighted works are bouncing around the Internet. Services that can swap or otherwise help users obtain copyrighted works include CuteMX, RiffShare, iMesh, Napster, Scour Exchange, Spinfrenzy, Gigabeat, Yonk, Gnarly, Gnutella, MyPlay, Wrapster and FreeNet.