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FindLaw Forum: Song may not be over for Napster
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(FINDLAW) -- Reports of Napster's death have been greatly exaggerated. A court case involving a newspaper and a writer may have implications for music fans who want to use the online program to download their favorite tunes.
In June, the United States Supreme Court, in New York Times v. Tasini ruled in favor of Jonathan Tasini, a freelance writer who in the early 1990s wrote some articles for the Times. When Tasini discovered the paper had republished his articles in electronic databases without permission -- and without payment -- he sued, claiming the newspaper violated his copyright.
While he had given the Times the right to publish his articles in its newspaper, Tasini argued, he had not granted permission for the publication to republish his work in electronic form.
The court ruled 7-2 in his favor. The Times, the panel agreed, did not have the right to post freelance work online just because it had first published the work on paper. Tasini and other freelancers gave the paper a limited publication right, which it had exceeded, the majority decided.
So far, so good. But there is a catch in this ruling.
Compulsory publication
The high court looked beyond the rights of Tasini and other freelancers in its ruling. Instead of allowing the plaintiff the right to decide whether he or other authors would give the Times the right to publish work in an electronic database, the panel suggested a creative solution for all parties involved.
The court wanted to ensure that freelancers' work would still be available to the public in databases. The goals of copyright law are "not always best served by automatically granting injunctive relief," noted Justice Ruth Bader Ginsburg, writing for the majority.
In other words, the work is Tasini's, but he cannot force the Times to remove his copyrighted work from its databases.
This is indeed a surprising turn. Normally, we would expect that the owner of a piece of property could do what he or she wants, within certain legal limits. Writers, their work protected by the First Amendment, traditionally have had the right not to publish, as well as the right to control where they publish their work.
This has potential ideological as well as financial repercussions. Freelancers for the left-leaning Nation might rebel, for example, if their work appeared without permission in the right-leaning National Review's online database, regardless of how handsomely they were paid.
Why did the court suggest possible limits on freelancers' property rights? The majority of the justices wanted to avoid creating "holes in history" that might open if freelancers' work disappeared from electronic databases.
The court suggested that such holes might be avoided if authors and publishers could get together and agree on the terms of electronic publication. If they couldn't find common ground, lower courts and Congress might be able to settle the issue -- each of which could "draw on numerous models for distributing copyrighted works and remunerating authors for their distribution."
This brings up the issue of compulsory license, of the public's rights balanced against those of copyright holders.
Eminent domain for the written word
The concept is similar to what happens when the transportation department decides to widen a road to make it safer for the public. Using the doctrine of eminent domain, the department can acquire private tracts to make its road wider so long as it pays property owners a fair price.
Compulsory licensing, in which the holder of a copyright or patent owner is required to permit someone else to use his work for a predetermined fee, is the eminent domain of intellectual property. It allows the state to interfere with an individual's property as long as compensation is paid, and requires that payment be determined objectively, not subjectively.
In Tasini, the high court suggested that the trial court could require parties to try negotiating. If they failed to agree, arbitrators might be called in to set a binding royalty, the panel said. For the Times, the arbitration fallback would mean the publication would not have to negotiate individually with each of its former freelancers and could maintain a complete online database of articles.
For freelancers, such a decision would mean their work might not simply be taken offline, as the paper has threatened to do.
For the public, those feared "holes in history" would never materialize.
The Napster connection
How does Napster fit into this? Like the Times, Napster argued in federal court that it was not violating anyone's copyright. And, like the Times, it lost.
But unlike the Times, the court required Napster to obtain permission from each individual copyright owner (the owner of every song distributed through the Napster system) before going forward.
The difference was crucial: In the Napster case, the ruling left the recording companies- the same companies which hold most of the copyrights, and have shown little interest in licensing songs for Napster's use - holding all the cards. The companies persuaded the trial judge, Marilyn Hall Patel, to require Napster to implement an increasingly onerous series of filters designed to screen out copyrighted materials.
When the filters did not entirely work, Patel shut down the site until it could demonstrate 100 percent compliance. (As of this writing, the appellate court has stayed her order temporarily.)
Now, with Tasini in hand, Napster could go back to Patel and argue that the court should force the music publishers back to the negotiating table and, if negotiation fails, impose a compulsory licensing scheme, with court-set royalties.
Unusual? Perhaps, but in some ways, such a ruling could be appropriate.
When the state gives out a copyright or a patent, it grants a monopoly to whoever holds the copyright or patent. Compulsory licenses help avoid abuse of that monopoly -- preventing, for example, a recording company from seeking to reduce competition in the sale of its works by restricting the number of sites where its music is sold online.
If royalties are set by negotiation or compulsory licensing, Napster and its users would have to pay in order for the site to survive - but at least survival would be an option. Otherwise, the recording companies would be able to shut out Napster entirely in favor of their own industry-controlled, online services.
Tasini suggests that courts have substantial power to fashion creative remedies that take into account society's interests in an intellectual property, and not just those of the copyright holder.
The Napster case might present a good opportunity for a court to exercise that creativity.
Anupam Chander is an acting professor of law at the University of California, Davis, School of Law. A graduate of Yale Law School, he specializes in cyberlaw and international law.
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