Rodney D. Ryder *

How would Napster have fared if its fate were to be decided in an Indian court? Rodney D. Ryder tries to find out in our Net Effects series

One of the most talked about cases on the subject of ASP liability is the one that pitted the Recording Industry Association of America (RIAA) against Napster. Napster delivers an Internet service that enables users to create their own private libraries of sound recordings. These libraries are then made available to other users for instantaneous distribution and copying. In March 2000, the RIAA, which represents music labels, filed a complaint against Napster, alleging that Napster’s wilful conduct constitutes contributory and vicarious copyright infringement.

Napster moved for summary judgement. In May, the judge denied the motion, holding that Napster was not an ISP because Napster did not "transmit, route or provide connections for allegedly infringing material through its system". (It actually provides the computer software application by which the allegedly infringing activity can occur.)

In June, the association asked the judge to grant an injunction to prevent Napster, while the case was pending, from "facilitating or assisting others in the copying, downloading, uploading, transmission or distribution of copyrighted musical works". After a two-hour hearing on July 26, a federal judge granted a temporary injunction, barring "digital music upstart" Napster from trading music online, pending a trial.

Napster immediately filed an appeal. On July 28 an appellate court granted an emergency stay, ruling that Napster had "raised substantial questions of first impression going to both the merits and the form of the injunction". On October 2, both parties had the opportunity to address the arguments for and against the injunction to the appeals court.

	reproducing the copyrighted works or storing them;
	selling or hiring copyright works;
	issuing copies of the works to the public;
	performing the works in public or communicating them to the public;
	making any translations or adaptations of the works.

In the Garware Plastic & Polyester versus Telelink case, which pertained to the showing of video films over a cable network, the Indian Supreme Court held that such an action amounted to broadcasting or communicating material to a section of the public. The court also held that such broadcasting of the programme directly affected the earnings of the author and violated his intellectual property rights, and stated that assisting in infringement would amount to infringement of copyright.

On the basis of this case, it may be possible for some to argue that Napster facilitates unauthorised copying and, hence, should be liable for contributory and vicarious infringement of copyright. But the Garware case is different from the Napster affair since Napster is not ‘broadcasting’ the music to any of its subscribers; it is merely providing software that may be used to locate songs for copying over the net. The legal position in India is as yet unclear and much would depend on the facts and interpretation of these facts by the adjudicating judge.

	if it is private use;
	for criticising or reviewing the musical work;
	for making back-up copies;
	or reporting the work in a newspaper or for judicial or legislative proceedings.

Therefore, it may be possible for Napster to run the argument of non-infringement, since its subscribers are using the music only for private use. But Napster would not be able to claim immunity under the ‘network service provider’ provision of the Indian Information Technology Act 2000. The provision stipulates that a network service provider can claim immunity against ‘third party information’ only if it proves that the contravention (in this case, copyright violation by the Napster subscribers) was committed without its knowledge, or that it had exercised due diligence to prevent any such offence or contravention. Napster is not only aware of such contravention, but is facilitating it by actively supplying the software and service that makes such contravention possible.

The outcome of this case could change the application of traditional copyright laws. If the court finds that Napster’s use of the copyrighted material was a fair use, traditional protection of copyright law will be worthless. Furthermore, a fair use decision may have an effect on one of the major purposes behind copyright law, which is to allow artists to restrict reproduction of the works they create. This protection gives artists an incentive to create works. A decision allowing copyrighted works to be easily downloaded from the Internet may cause artists to refrain from creating works. Additionally, the RIAA complains that it will lose revenue from CD sales.

By the time the time research for this article was concluded, the infamous Napster judgement became well known. The ruling against Napster is a tremendous blow to lovers of the "freedom of the Internet", but it is vital for the safeguarding of intellectual property worldwide. Even if Napster is shut down, many more will emerge to take its place. This is a "menace" that’s virtually impossible to contain.

We welcome responses to the issues raised here. Please mail your comments to this address: rd.ryder@vsnl.net