Napster First Amendment Right Essay Research Paper

Napster: To Be or Not To Be

Napster (http://www.Napster.com) is a company that operates exclusively online as a virtual music forum. Napster not only allows its visitors the ability to participate in ongoing discussions through its message board forums and online virtual chat rooms, but it also allows its visitors the capability to exchange music files (MP3s) with other Internet users. Because Napster is a “virtual” online public forum, Napster should be protected under the First Amendment. Under the First Amendment, “we the people,” are protected by these rights of freedom of speech and assembly. The idea of people coming together in one specific area of the Internet and being able to talk about music is essentially a right of all Americans. We have the right to “freedom of assembly” and the right to “freedom of speech.” This is why Napster should not be shut down. Napster should be protected under the First Amendment.

Wait!!!! What is a Napster? Shawn Fanning was a nineteen-year-old college student at Northeast University, when he first introduced his program Napster. Fanning had two loves: one was sports and the other was computers. As his curiosity grew for computers, he decided to stop playing sports. He then concentrated most of his time working with computers. He primarily focused on two aspects of the computer, programming and the Internet. During his freshman year at Northeast University, in 1998, Fanning was trying to enter computer science classes higher than the entry level (Jones, 2001, 1A). Not finding anything challenging about the courses he was enrolled in, Fanning decided to start writing a Windows based program in his spare time. He spent most of his time in chat rooms with experienced programmers who knew the ?tricks of the trade,? so to speak, of computer networking. Shawn?s roommate loved music files, most commonly known as MP3?s, but disliked most music sites that had limited music files available. He also disliked the idea of having to search endlessly from Website to Website for songs. Fanning, having this in mind, and his programming skills at hand, he wrote a program that he entitled Napster. He used the idea of all users being connected to one central computer server, and having access to each other?s music files that users wished to share (?MTV News,? 2000, 1). Spoken in a more technical manner ?Napster makes its application software freely available for download by consumers from its website. This software allows users to connect their PCs to and participate in the Napster peer-to-peer file indexing system. Users are not required to share any files with others, either as a condition of using the Napster system or in order to obtain files from other users? (Reuters, 1999). In short, Napster is a facilitator that allows its users to trade music files. It was created by Fanning because other music-trading sites were in his view, unreliable.

The idea of program sharing MP3s and giving people the ability to make customized compilation CDs (also known as burning a CD) of their favorite artists songs may sound brilliant to the users of Napster, but to the musicians whom creatively write the music, this is in their view, is a form of stealing. They have not only spent hours producing and writing music, but music is something that is published and copy-written. The Recording Industry Association of America (RIAA) is currently representing the band Metallica, rapper Dr. Dre, and five other major record labels, which are all plaintiffs in a copyright infringement and piracy lawsuit against Napster (Reuters, 1999). When the Napster software is downloaded on a computer hard drive, Napter serves as an online music community, where you can conduct a search of the other users songs (MP3 files) that are currently online. According to Fanning, ?There are consistently eight hundred thousand people using the Napster service, limited only by their resources? (?MTV News,? 2001, 1). This statement is the exact argument that the RIAA is using to sue Napster. On May 8, 2000, the RIAA sued Napster for copyright infringement (Heilemann, 2000, 1-2). In their opinion they feel that there are over eight hundred thousand people stealing music at any given time. The RIAA believes that Napster and its founders are promoting the illegal reproduction of copyrighted music, and not giving any royalties to the owners of the songs (Reuters, 1999). Their theory behind the lawsuit is that there is no reason for a lover of music to go out and buy a compact disc that they like, why would a person want to buy a CD, when they could get it for free? They belief that Napster should be shut down until it compensates the artists for lost revenues for copyrighted music that was ?stolen.? ?There is not a First Amendment right to take someone else?s copyrighted expression and duplicate it? (Freedom Forum Staff, 2000,1).

On the flip side, Napster believes that shutting their company down is in violation of ?1008 of the Audio Home Recording Act (AHRA), which immunizes all noncommercial consumer copying of music in digital or analog form? (Reuters, 1999). This basically means that since Napster is not profiting off of the music, and the sharing of music is intended for the soul purpose of the ?noncommercial consumer? usage, therefore, it is protected by the AHRA. According to Napster?s newsletters, ?as a condition to your account with Napster, you agree that you will not use the Napster service to infringe the intellectual property rights of others in any way? (Earp, 2001, 1). Napster believes that they are just the facilitators in an online exchange forum. Napster is the program that links computers together, not the program that ?steals music.? They contest that they have done nothing wrong and that they shall not be shut down by a court of law. As to this day, the litigation between the two parties (RIAA and Napster) still has not been fully resolved. The CEO of Napster, Hank Barry, and Andrea Schmidt, the executive at Bertlesmann, (one of the world biggest media conglomerates and a plaintiff) went to the zoo one day and as odd as this may sound, “during a critical point in their eight-week-long secret negotiations” about the current lawsuit that Napster was involved in were looking at the exhibit with Lily the polar bear. All of a sudden, “to their horror, Lily shot out a paw and savagely crushed the bird. The metaphors presented themselves immediately. “I don’t want Napster to end up like that pigeon,” Barry recalls saying” (Stone, 2000, 1). Napster is taking this lawsuit very seriously and is throwing everything in its arsenal to stop the destruction of itself. They are presenting statistics that strengthen their power, for example “in the past year, the recording industry has posted a ten percent increase in album sales” (Earp, 2001, 2). They claim that there is an increase in CD sales despite the fact that Napster still exists. Napster is not hurting the music industry, in fact they believe it is helping them, so why bother shutting the program down. Shutting down Napster is the crime that will be committed; Napster is not the one committing the crime.

The current lawsuit that is still pending between Napster and the RIAA is should not be considered in the argument that Napster should be protected by the First Amendment; the lawsuit is irrelevant to my argument. I believe that Napster should be protected under the First Amendment. Napster is a ?virtual? public forum. In this forum people assemble together, they talk about music, read about music, and most importantly they trade music. This idea brings up the point that Napster and its users have the right to assemble, and have the freedom of speech to talk about music. If the courts send down a decision in favor of the plaintiffs, the court is essentially contradicting a right that has been instilled in this country ever since it was formed. It will be contradicting a right that was the main reason for the foundation of this country, the freedom of speech.

Americans have the freedom of speech. Napster users also have this freedom. ??In order to implement the District Court?s order, Napster would be forced to terminate is Internet directory, despite the fact that the directory serves numerous lawful purposes. Napster has the First Amendment rights to publish a directory, Napster users have First Amendment rights to have access to such a directory? (Reuters, 1999). This statement explicitly states that Napster and its users have the First amendment right to use Napster. In this program thousand of people assemble together at one time to talk about music and trade music. If Napster is shut down, the courts will be infringing on the First Amendment rights of Napster and its users.

In concern to the lawsuit, the RIAA is suing Napster for copyright infringement. They are suing for copyright infringement because Napster users are trading music and then burning the music onto CDs without ever having to buy them. Napster has presented a proposal that it would charge a flat one-time fee for the use of Napster (?MTV News,? 2001, 2).

The idea of having to pay for a service may not leave a good taste in some users mouths, but on the other hand, ?some local users of Napster say they would be interested in subscribing to the popular music-file-sharing Web site if an appellate court shuts down the free service? (McWilliams, 2001, 1A). The idea of having to pay or not to use the service is irrelevant to the argument, but if having to pay the artists is the only thing that is going to keep Napster alive and to stop the government from crushing their First Amendment rights, then the act of paying should be enforced, and both side will be satisfied.

In conclusion, Napster should be protected under the First Amendment. Napster is a public forum where people can get together to talk to each other and trade music files. The First Amendment clearly states ?Congress shall make no law ? abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble? (Bill of Rights). These are the rights that Napster and its users all have, for they are members of the United States. Regardless of the current lawsuit about copyrights that is still pending, or whether or not the users of Napster should have to pay for the services, Napster should be protected under the First Amendment.

Bibliography

References

Earp, J. (2001). Napster online. Napster copyright policy. Retrieved February 8, 2001 from the World Wide Web: http://www.napster.com/terms.

Freedom Forum Staff. (2000). Freedom forum. Napster shutdown not a free-speech issue, experts say. Retrieved February 8, 2001 from the World Wide Web: http://www.freedomforum.org/news/2000/07/2000-07-27-05.htm.

Heilemann, J. (2000). Wired interviews. Boise, the wired interview. Retrieved February 8, 2001 from the World Wide Web: http://www.wired.com/wired/archive/8.10/boise.html.

Jones, T. & Carlozo, L. (2001, February 12). Song-swap service vows to keep fighting. Chicago Tribune, A:1

McWilliams, M. (2001, February 12). Court may pull plug on free Napster. The Daily Iowan, A:1, 8.

MTV news interview: Fanning speaks. (2001). MTV News. Retrieved February 8, 2001 from the World Wide Web: http://www.mtv.com/nav/intro_news.html.

Reuters. (1999). The business of information. Napster brief. Retrieved February 8, 2001 from the World wide Web: http://www.reuters.com/news.jhtml?types=internet

Stone, B. & Miller, K. L. (2000, November 13). The odd couple. Newsweek, 46, 49-51.