More venerable than the presidential "zero factor" and more democratic than the "curse of the Bambino, one of the most well known superstitions in all of sports is the "Sports Illustrated Curse", a jinx that dictates that anyone who appears on the cover of Sports Illustrated will enter a slump of Biblical proportions. In 1998, after Derek Jeter was featured on the cover, he began the longest hitting drought of his career. Conventional wisdom says that any team that SI picks to win a championship, in any sport, will surely fall short if the magazine places the pick on its cover. Heck, I remember writing off my beloved Eagles' season in 1988 after Randall Cunningham was featured on the cover over the headline "The Future of the NFL." And I am not a superstitious man.

And so it seems to be for lawyers, too. Any attorney who dares to stray from the dim lighting of the dusty library into the limelight of national attention is surely due for an opening of a six pound can o' whoop-ash in his next few trials. Such is the fate of David Boies.

Boies is a renown attorney who saved IBM's big blue heiny from antitrust charges back in the late 70's and early 80's, and burned Microsoft's butt on the same charges last year. If lawyers had groupies, David Boies would be the Gene Simmons of Juris Doctors, with a desk full of Polaroids of juror snatch. He is a god in the field, famous for overcoming childhood dyslexia by learning how to simply memorize complex webs of facts so he could spend his valuable time focusing on theory. And if the newspapers and magazines and trade papers are to be believed, there is nobody in the world better at developing a theory of the case than David Boies.

But in mid-November, Boies began to appear on the covers of nearly every national magazine there is: Time; Newsweek, U.S. News and World Reports. He was even featured in an edition of the Economist. And we all know why: He represented Albert Gore Jr. in his various Florida election recount cases.

And you all know what happened there. He got his butt whooped. And if you ask me, he was right on the law 4 times out of 5 in Florida. He shouldn't have lost, but he did. Like the Jacksonville Jaguars that SI picked to win the Super Bowl in 2000, the rest of the league was gunning for him, and there weren't a damn thing he could have done about it.

It happened again on February 13, 2001. Boies was the lawyer who represented Napster in its appeal to an en banc panel of the ninth circuit court of appeals in its effort to have district judge Patel's 2000 injunction permanently overturned. Patel had held that Napster was more likely than not to be found guilty of contributory copyright infringement, and as such, should be stopped from continuing their actions until a jury could make a decision about whether or not they actually were guilty of contributory copyright infringement. The ninth circuit initially told judge Patel to step off while they considered the issue, and Napster was allowed to continue for about a year. But this week, the appellate court ruled that Napster was, in fact, guilty, and ordered Judge Patel to amend her order accordingly.

The skinny, for those of you to whom the last paragraph made no sense, is that Boies got his butt kicked again, and again, he was right and the court was wrong. Napster will no longer be permitted to operate in that way it's been operating. But I'm here to tell ya brother, all is not lost ... because this court will be overturned, and even if it isn't, users of Napster have a way around the order.

Why Napster is Not Guilty of Copyright Infringement

Months ago, this little essay began as an epinion entitled "I Love It When I'm Right." Because, as I said above, a federal appellate court had told a judge who was trying to stop Napster to knock it off, and I had been telling all me Intellectual Property lawyer friends that that was exactly what would happen. Moreover, I had told them the exact case that the Ninth Circuit would base its ruling on. And sure enough, David Boies went in there and cited the case I'd been citing for months and the Ninth Circuit seemed to agree with him.

But then it occurred to me that courts sometimes do funny things, like change their mind down the road, and make decisions that don't make any sense. And it also occurred to me that I hate gloating only to be proved wrong later. Finally, it occurred to me that I really wanted to write a review about how good Knob Creek Bourbon is, instead of writing about law, which I kinda hate. So I skipped it for a while.

What's my point? Quiet, I'm getting to it.

Napster is not guilty of copyright infringement. But everyone pretty much agrees on this issue. Napster isn't doing any of the things that constitute infringement. They don't supply music files to people. They don't copy music files. They don't store illegal copies of music files. All Napster is is a search engine and a file swapping program, put together in one handy dandy package. But I don't want to get too much into that, because the record companies and the courts and everyone else pretty much agrees that Napster itself does not infringe on anyone's copyright.

The issue is whether or not Napster is guilty of "contributory copyright infringement." That is, are they guilty of contributing to other people's infringing activities?

For those of you who don't know what Napster is or does, now might be a good time to go off on a tangent. All music nowadays can be digitized. That's all a CD is: digitized music. But most songs on a CD are essentially very very big files of digitized music that can only be read by a certain type of machine: Your CD player. MP3s are really, really small files that hold the same information as those really big files on your CD, so certain programs can read them really quickly. It's like if someone figured out a way to fit the bible on a fortune cookie insert.

What that means is that instead of taking two hours to send a large digital file of music over a phone line, it now only takes a minute or two. And people have been doing that for a few years now. If you open up your browser and type in the terms "MP3" and "Three Little Birds" in the Google search engine, you'll come up with 730 hits for sites where you can download or trade the song "Three Little Birds" by Bob Marley and the Wailers. It pretty much works that way with every song.

But a lot of those links will be dead or slow or, for whatever reason, a hassle. If you want it, you can find the song, and you can successfully copy it on to your computer. But it may take you half an hour to get it. But be aware that when you do this, you are probably infringing on the copyrights of Rita Marley or Ziggy Marley or some other talented and/or opportunistic rastafarian. And the person you're downloading the song from is also probably violating the same copyrights.

But here's a concept that will be important in a few minutes, so pay attention: Google is not contibutorily infringing on a copyright just because Google helped you find a place to download the song. And AT&T is also not guilty of contributory copyright infringement just because you downloaded the song over their phone lines. Nor is the inventor of MP3 technology guilty because he created a system by which you could get the songs in a half hour instead of 3 hours. You're guilty. They aren't. Nobody disagrees about this.

But record companies want you and the courts to think that Napster is different. And in a way it is. But not in any way that is supposed to matter to the law.

Hey look, I'm about to go off on another tangent.

Contributory Infringement

"Contributory Infringement of Copyright" is a relatively new concept, having first been defined by a Federal court in New York in 1971. In the case Gershwin Publishing Corp. v. Columbia Artists Mgt., Inc. the second circuit court of appeals said that a person is guilty of contributory infringement if they do both of the following things: (1) They know or have reason to know of someone else's infringing activity, and (2) they actively participate by inducing, materially contributing or furthering the other person's directly infringing acts.

That's pretty broad, right? I mean, under that definition, Google probably is guilty of contributory copyright infringement, right? Thank about it. The Google company surely knows that a lot of people are searching for MP3s on their search engine. In fact, I'd hazzard a guess that after all the porn words you can think of, and the terms "Brittney", "Spears" and "Brittney Spears" the term "MP3" is the most popular search term on the entire internet. Plus, they materially contribute and further my infringing acts when I download MP3s because, well, if I couldn't use a search engine to find the MP3s I want, I couldn't possibly download those MP3s, could I? I mean, if I had a friend in Alberta who had a copy of "Teenage Enema Nurse" by the 1980's band Killer P-u-s-s-y, I guess I could connect to them without a search engine and download. But let's face it, most people who download MP3s are getting them from people they don't know.

But that's okay, because the U.S. Supreme Court has sort of limited the rule first invented in Gershwin Publishing. In Sony Corp. of America v. Universal City Studios, Inc., the Supreme Court held that videotape machine manufacturers were not guilty of contributory infringement, even though they satisfied the general rule cited above. You see, VCR makers were surely aware that people were taping Oprah (well, in 1984, it was probably Phil Donahue), and they surely knew that people couldn't violate Phil Donahue's copyrights without the use of a VCR. But the wise members of the court decided that, as long as there was a substantial non-infringing use for the product (VCRs), then it didn't really matter that Sony knew that some people would use the product to infringe on copyrights. VCR makers are forever free to help people copy their friends' collection of Star Trek videos.

But check out the thin justification that the Supreme Court gave for it's decision. Basically, Rehnquist and his homies said: Look, some people use the record function of their VCR for something called "Time Shifting." Meaning, since they can't catch "As the World Turns" while they're at work, they just tape it, watch it later in the day, and then erase it, which really isn't infringing activity.

And maybe it was true in 1984 that that's how many people used their VCRs. But I submit that it was pretty clear even back then, that most people used their VCRs to, ya know, record movies and whatnot to add to their permanent collections. Most people use the record function of their VCRs to violate copyrights.

But that's okay, said the court, as long as there's a substantial non-infringing use. You can't hold someone liable just because they sell a product that some people decide to use in an illegal way.

So again, what is it that Napster does? They offer for free a program that is more effective than normal search engines at finding MP3 files on the internet. But let's get a couple of things clear here. Napster does not store any MP3 files on any database of its own. Unlike the now defunst MP3.com, you don't get your music from Napster. You get it from other people using a program that Napster designed. Napster doesn't upload files, and you don't download files from Napster. At no time is Napster in possession of any music file. And at no time does Napster exercise any discretion or control over what you're getting from other people.

And let's get something else clear: Napster has a substantial non-infringing use. Lots and lots of artists have purposely made their music part of the public domain, meaning they have offered their music files as MP3's for whatever use people want to make of them. Thousands of unknown bands have ripped MP3s of their songs and placed them on the internet, in the hope that people would trade those songs and they would be heard, making them more popular and helping them make money at live shows and through sales of their entire CDs. Even well known bands, like Everclear and David Bowie have offered their music for free over the internet. They have proclaimed their music part of the public domain. So if I want to get a copy of David Bowie's new free song, the best way for me to get it is to go on to Napster and type in David Bowie or the name of the song. Or if I hope to find a recording of some no-name band I saw last night at the bar on the corner, I'm sure they would be really happy if I went onto Napster and types in their name and got one of their songs.

My point is, Napster complies with the requirements laid down by the U.S,. Supreme Court in that it has a substantial non-infringing use. It should not, therefore, be considered a contributory infringer.

But I have a friend that argues thusly: Look Mr. Eyore, that's all well and good, but you and I both know that the vast majority of people who use Napster use it to infringe on copyrights. They're downloading songs that the band would prefer they pay for.

And my friend is right. But that's not really the point. The rule isn't "What do most people do?" The rule is "Can you use it legally?" Right? Most people don't use the record function of their VCR to "Time Shift"; they use it to build a library of movies they don't have to pay for.

"But it's a question if numbers," my friend seems to insist. "If almost all of the people who use the service use it for an illegal purpose, and Napster knows that, then they're contributing."

I counter with this: Napster doesn't have any control over how people decide to use their service, and it's not fair or just to hold them responsible for it. It doesn't fit in with our typical notions of the judicial system that we would find a person's activities illegal based on the arbitrary activities of other people.

In the law, we do a thing called presenting hypotheticals in order to test the truth of certain propositions. So here's one: Let's assume that all but one person who uses Napster are using it to trade "public domain" music. I think it's fair to say that most people would not hold Napster liable under the law as it stands just because one person using the service used it for an improper purpose. How about 5% of the people using the service? How about 20%? How about 50%?

It's a slippery slope, and the point is, Napster doesn't have any control over how people use the service. Why should their activities be unlawful because – say – 40% of people out there decide to use the program a certain way, but not unlawful when it's only 5%. And where do you draw the line? 25%? 15%? And if you're going to say that it's unlawful if 40% of the people using the site are using it to infringe, don't you also have to say the record buttons on VCRs are unlawful if 40% of the people use it to copy copyrighted movies?

The law needs to assume that Napster has appropriate motives – that they exist to help unknown artists spread their music, not to help people steal Metallica's latest.

The Latest Ruling Doesn't Really Matter

All of this may be a moot point anyway, for two different reasons. First, I believe that the Supreme Court will overturn the Ninth Circuit's ruling. The ruling was incorrect under the law as it now stands. But that shouldn't be surprising to anyone. The VCR case discussed above initially came before the Ninth Circuit and that court ruled that VCR makers were contributory infringers. The Supreme Court gave ‘em the smackdown. Rehnquist and the Republicanettes are likely to do the same thing this time.

But even if they don't, the court ruling is that Napster has to take action to stop people from trading songs that are not in the public domain. This is an impossible task. People on the internet are fairly ingenious. Napster can easily block all searches for, say, Rolling Stones songs. But I'm guessing that it will take about a week for someone to set up a web index whereby Rolling Stones files will simply be referred to as RolSto and their songs will be renamed Ang (Angie) Jum (Jumping Jack Flash) and BOB (Beast of Burden). Napster won't be able to keep up with the ways that millions of individuals get around the court order. And the court won't be able to do a damn thing about it.


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