Imputed Liability?

by Steve Ciarcia

ocktail parties with business people are all alike. Without exception, in a professional crowd someone will jokingly yell out, "They should shoot all the lawyers first!"

I always laugh and agree. At the same time, I'll admit to all of you that I've availed myself of many legal services in the past. Of course, it can always be argued that if lawyers weren't creating a full-employment economy for lawyers in the first place, then I wouldn't have needed them as often.

I only bring this issue up because of all the brouhaha about Napster and copyright infringement. As an avid consumer of information and technology, I want the Internet to be as free from obstacles and regulations as possible. As a supplier and publisher of some of that same copyrighted material, I want to know that it can be protected. Basically, I see both sides of the argument.

In order to understand what is going on with Napster, some of the legal jargon defining copyright infringement has to be explained. A copyright is a federal law that protects the intellectual property of artists and authors when they publish their works. A copyright lasts for the life of the author plus 50 years. "Copyright infringement" simply means the unauthorized use (or posting) of copyrighted material. The real issue in this case revolves around something in copyright law called "imputed liability." Imputed liability doesn't mean that you are specifically violating copyrights by your own action, it just means that you were in the position to control someone else doing it. Under the law that makes you just as liable.

The RIAA and Metallica are contending that Napster is liable because it controls the service through which Napster users are committing individual copyright infringement. (The RIAA could sue each individual for downloading MP3 files of copyrighted music, but the cost and difficulty of pursuing legal action against each "infringer" could be prohibitive. It's more effective to go after the "deep pockets.")

There are various defenses to this argument, which is not a new one. The record industry said that cassettes would destroy the record industry. The motion picture producers said the VCR would end the making of movies. It hasn't happened in both cases because the evolutionary choice to copy the materials to a new medium wasn't driven by a lust for copyright infringement. It was driven by convenience and economics.

Although it's not always the case, file sharing can prove beneficial. Would Microsoft have risen so quickly if the original Microsoft BASIC not been copied to millions of home computers in the early days? Was the end result of all that file sharing the creation of a culture bent on software piracy or was it instead a wider public ready to pay for a regulation upgrade after they had sampled the merchandise? It's not pretty, but that's what happened.

The popularity of MP3 file sharing has a lot to do with overpricing in the music industry. Are you old enough to remember being able to hear a record before buying it in a record store? These days, if it isn't played on a radio station, you basically have to buy the CD and that's your first sample. It wouldn't be so bad if the music industry wasn't also charging more for cheaper-to-produce CDs than other media. That certainly doesn't help music industry popularity.

The music industry wants to eradicate services like Napster. The courts want to apply laws fairly to all. The truth is that neither the music industry nor the laws can keep up with the technology. I don't have a good answer for the present dilemma. All I can say is that the web has become the great equalizer. It takes millions of dollars to hire a staff, design a product, and launch a new company. These days, all it takes to destroy that business model is a 19-year old who designs an application that turns the world upside down. Welcome to the Internet.