Napster shutdown not a free-speech issue, experts say

By The Associated Press,
Freedom Forum Online staff

07.27.00

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(Editor's note: On July 28, two federal appellate judges stayed the order for Napster Inc. to shut down. The Recording Industry Association of America could still appeal the stay to the full 9th U.S. Circuit Court of Appeals or the Supreme Court.)

SAN FRANCISCO — Napster users who believe a judge's shutdown order violates their free speech are getting little support from First Amendment specialists.

A federal judge yesterday ordered Napster Inc. to shut down its Internet clearinghouse at midnight tomorrow, saying the company that revolutionized music distribution was encouraging wholesale infringement of recording industry copyrights and would likely lose at trial.

Chief U.S. District Judge Marilyn Hall Patel granted the preliminary injunction at the request of the Recording Industry Association of America, which sued Napster in December for copyright infringement.

The judge said Napster had the capability to police the unauthorized trade of copyrighted music through its system, but failed to do so.

"They've created a monster, for lack of a better term, and that's the consequence they face," she said. "I can't just let it go on."

But Napster has contended that shutting down the company would infringe on the free-speech rights of both Napster and its users.

According to today's Washington Post, supporters of the service say the recording industry is using copyright law to suppress new technology and to preserve a market that promotes only a fraction of the world's artists. Proponents of this argument, free-speech expert Eugene Volokh told
The Freedom Forum Online, believe that shutting down Napster violates First Amendment theory.

"The argument goes like this: Given changing technology, copyright law has become more of a restriction on free expression than an engine of free expression," he said. Many people believe "the marketplace of ideas would thrive more fully if people were free to copy," he added.

But existing First Amendment doctrine, Volkh says, does not support this argument.

"The U.S. Supreme Court has held that using another person's copyrighted expression can be prevented by copyright law and does not violate the First Amendment," he said.

California intellectual property attorney Lawrence Iser agreed, saying: "The First Amendment arguments bewilder me."

"There is not a First Amendment right to take someone else's copyrighted expression and duplicate it," Iser said.

Napster CEO Hank Barry says the company plans to appeal the order to shut down: "We intend to see this through in every venue, in every court."

The injunction is to go into effect after the nation's largest record producers post a $5 million bond against any financial losses Napster suffers from being shut down pending trial.

An estimated 20 million Napster users worldwide will be affected by the court order in the landmark battle over Internet technology and intellectual property rights. The order applies only to copyrighted music, but Napster attorneys said it would cripple or shut down the swapping service.

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