Napster Could Have Avoided Courts, Lawyer for Record Industry Says

Napster Inc., the controversial song-swapping service, heads back to U.S. District Court in San Francisco today to face the music for what could be the last time.

Judge Marilyn Hall Patel has been instructed by a federal appeals court to order Napster to stop users from trading copyright-protected music files from its system, a move that could shutter the service.

Pressing the case for the record industry at today’s hearing is Russell Frackman, the chief litigator for the big labels. Frackman, 54, has spent 30 years fighting music piracy. In an interview this week, he talked about the case’s likely outcome and the legacy that Napster will leave on the world of copyright law.

Question: Could this fight over Napster’s fate continue? Could it go all the way to the U.S. Supreme Court?

Answer: Never say never. But the appellate process now is in Napster’s hands.

Q: Since the appellate ruling, this dispute between Napster and the record industry has gone public. Is it even possible now for the two sides to cut some sort of deal?

A: Not at all. But we’ve been saying from the beginning that any possible business resolution would have to come on a record-label-by-record-label communication. Napster was always free to speak individually to the record labels and propose any kind of business resolution that it desired to talk about and not to handle it in the news or through the media.

Q: Did Napster ever have a chance to avoid all this litigation or, as Napster insists, was it backed into a proverbial corner?

A: I’ve been doing this kind of piracy work [for the music industry] for close to 30 years, starting with 8-track piracy and going through cassettes, CDs and now the Internet. I’ve always been called as the last resort, not the first one. Litigation has been the last resort in this area.

Q: But did the record industry ever give Napster a chance to settle?

A: The record industry and the record labels prefer to protect their intellectual property on a consensual basis, hence the reason for all the cease-and-desist letters. Those are invitations to talk and work things out. There was, in this case, a cease-and-desist that was sent to Napster before litigation was filed. There was the opportunity to talk. Instead, [Napster] took the property first and asked questions later.

Q: If Napster loses, what kind of monetary damages could it be looking at?

A: There are different ways under the copyright law to calculate damages. If you take what the copyright law calls statutory damages, you are talking about damages calculated on the number of copyrights infringed. Our maximum would be $100,000 per copyright. While there are about 200 titles in the complaint, we know from our investigation that there have been thousands and thousands of copyrights infringed. So no matter how you count it, the damages are very, very large. There will be lots of zeros [at the end of that number].

Q: How exactly are you planning on getting these damages, considering that Napster isn’t generating any revenue?

A: We’ve been focusing our attention strictly on stopping the real harm, which is Napster the company. What may or may not happen in the future I think probably remains to be seen.

Q: A year ago, many people were insisting that copyright law was dead. In the wake of the appeals court’s decision, that’s obviously not true. Will the Napster case have a larger legal effect on copyright law?

A: Definitely. It is certainly the primary decision involving the protection of intellectual property over the Internet. It will apply across the board to not only the record industry, which obviously at the moment is the industry most affected, but movies, books, anything that can be traded or transferred over the Internet. Even the Los Angeles Times.

Q: Does copyright law need to be revamped, considering how fast technology is moving?

A: The copyright law has always had to evolve and to change to meet new technologies. When I started to practice in 1970, we were still operating under a copyright law that had been passed in 1909, and that was dealing in its specific language with piano rolls.

To some extent, the law will continue to change. But the basics don’t. You create something, and for a limited period of time at least, you have the right to own it, to license it and to choose not to if you decide not to.

Q: Technology traditionally has spurred creativity in the record industry rather than hindered it. But it also brought the opportunity for the theft of intellectual property. Did the recording industry inadvertently allow Napster to flourish by not rolling out its own online services fast enough?

A: It takes a lot more time to plan for a new technology such as the Internet, when you’re going to use it in a manner that protects intellectual property and then compensates for it. Long before Napster came into being, the record industry and individual record companies one by one were investigating and developing and planning for online distribution of their music. These are issues Napster did not have to face, because it simply took the material and made it available free.

Q: Even if Napster shuts down, it doesn’t eradicate piracy on the Net. What is the recording industry going to do about everything from Gnutella to the explosion of Napster copycats?

A: There is a strategy, but I can’t go into great detail. Like what the Recording Industry Assn. of America did with the [Napster copycats], I think it starts with the cease-and-desist letters. We hope that a number of them will continue to go down voluntarily, particularly in the face of the 9th Circuit opinion and knowing that what they’re doing is clearly unlawful.