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| Kornfield |
Some want to download songs for pleasure, others for teaching purposes. Most artists want to retain the rights to the songs they create.
These issues were explored at the open session, “Free Music From the Internet: Sharing or Stealing?,” the first talk in a three-part symposium on “Copyright Dilemmas ina the Information Age.”
The University is directly involved in these issues as a result of a lawsuit filed against Napster on behalf of the hard rock band Metallica. Metallica’s attorneys have asked the U-M to ban access to Napster’s Web site.
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| Stone Photos by Paul Jaronski, U-M Photo Services |
“The purpose of copyright law is to enrich and educate the public through their access to creative works,” said intellectual property attorney Susan Kornfield. “I understand that you can upload, copy and disseminate any sound recording to anyone without seeking permission, without paying a fee”
“I think that my constituents would think that when you make copies for your own personal use that would be OK,” said Noah Stone, executive director of Artists Against Piracy, whose membership includes such musicians as Sheryl Crow, Matchbox 20 and more than 70 other artists. “But when you begin making copies to distribute to others, then you get in a much grayer area,” Stone said.
Napster is in court because songs fit into the class of works protected by Section 106 of the Copyright Act, which states that a copyright owner has the exclusive rights “in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.” Napster is problematic because copies of entire songs are being reproduced, a violation of copyright owners’ rights.
The “fair use” section of the Copyright Act, however, limits owners’ rights in some cases. Fair use states that reproducing copies for “purposes such as criticism, comment, news reporting, teaching, scholarship or research” is not copyright infringement. For example, faculty members who want to download songs for teaching purposes are not liable.
“Napster isn’t reproducing copies,” Kornfield stated, but one court has said Napster is a willful infringer. “How,” she asked, “can a court find that Napster is engaging in criminal conduct when Napster isn’t reproducing copies? They’re facilitating the reproduction of copies.”
If the file-sharing users are infringing, then Napster could be liable for contributory infringement. For this to happen, first the users must be held liable for reproducing copies. “But we really don’t know why the users are copying because there hasn’t been any testimony from the users,” Kornfield explained. If the courts decide that the fair use section of the Copyright Act should protect file-sharing, then Napster shouldn’t be held liable either, she contends.
This is where Noah Stone and the Artists Against Piracy join the battle. Artists fight for the rights to their songs, while others feel they have First Amendment right to creative works.
Last year, MP3.com began offering a service through which downloaded songs can be tracked. “It connected people in a way independent artists never before had the ability to do,” Stone said.
But Napster worries Stone. “How, as an artist, will you ever see money that your label is making on an equity deal with a company? There’s no way the money will find its way back to the artist,” he said.
In many cases, artists sign their rights over to large record labels. Because of this, Stone said, even if the companies are making equity deals, artists lose money because they are paid by how many records they sell, not by how many songs are downloaded. “During the time period Napster has been operational, CD sales have gone up 6 percent,” Kornfield said. But increased sales are not necessarily an indication of a causal relationship.
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| Gross |
The First Amendment Center recently completed a study on Napster use on college campuses and found that 67 percent of students surveyed believe they have a First Amendment right to share music with their friends.
“I don’t think anyone is advocating that artists shouldn’t be paid for their creation or that all of it should be free,” Gross said. “We may just disagree on the best model to achieve our shared objectives.”
Currently, one of the best ways to shape the discussion may be to lobby at future court cases.
Kornfield cited the Michigan Document Services case in which the Association of American Publishers claimed that a for-profit copy shop couldn’t facilitate faculty and student access to reading materials. Kornfield claimed that students and faculty made a difference in the case by writing affidavits. “The court could hear the voices of those who use the course packs and select the materials . . . so you have the opportunity to have your voices heard through participating in litigation,” she stated.
Stone said artists should lobby for copyright protection of their music. “I think we have moral ground that this is the creation of artists. If artists can band together, then we can be a player in Congress, where this is going to play out next year,” Stone said.
Gross believes that artists benefit when they take advantage of the new technology and make their works available for people to download on Napster. “It’s worked tremendously for them, they’ve reached an enormous number of fans and have received dozens of e-mails from people saying ‘I want to buy your CD,’” Gross said. “So it’s not all black-and-white. Some artists have a First Amendment right to use the power of this technology to reach their fans.”
The symposium was sponsored by the Business School, Consider Magazine, Hillel Major Events, the Law School, Michigan Union Board of Representatives, the Office of the General Counsel, the Office of the Provost, the President’s Information Revolution Commission, the Technology Management Office, the Office of the Chief Information Officer, the School of Information and the University Library.