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Harvard Stays Clear of Napster Battle

By M. ARI Behar and Joshua J. Forman, Crimson Staff Writerss

Although legal threats and bandwidth congestion have recently prompted more than 100 schools to ban the use of a popular music-trading program on their networks, Harvard has somehow managed to stay out of the spotlight--and the courts--on the issue.

Last December, 18 record labels filed suit against Napster--a company whose MusicShare software allows users to trade MP3 music files over the Internet--for copyright infringement.

A more recent suit by the metal band Metallica has prompted three schools, including Yale, to ban the use of Napster on their networks.

The suit against Napster alleges that the firm engages in "vicarious and contributory" copyright infringement.

Vicarious copyright infringement is defined as the failure of the defendant to stop copyright violations when it is in a position to do so and when it will benefit financially from the violations. Contributory copyright infringement entails actively helping a third party break copyright law.

Professors at Harvard Law School (HLS) say the University may be bound to restrict access if a lawsuit is served, but Harvard denies it is liable in any way, and says that for now, it will not even consider outlawing use of the software.

Close to Home

Rapper Dr. Dre and the rock band Metallica separately filed suits against Napster and several universities this spring. Metallica named Yale, Indiana University and University of Southern California in its suit.

Many other universities, including Brown, Oregon State, University of Washington and Northwestern, have already blocked access to Napster due to the excessive strain that its software was causing on their servers.

Metallica also hired NetPD, a consulting firm, to monitor Napster for users who illegally traded its music. Metallica brought the resulting list of more than 300,000 users to Napster's attention and insisted that these users be banned from its service under the provisions of the Digital Millennium Copyright Act (DMCA), a law passed in 1998 to deal with digital media.

Napster has since complied, and several Harvard students are among the many who found their accounts terminated.

Harvard has noticeably been left out of Metallica's lawsuit--in part because, unlike Yale, Indiana and USC, it never instituted a partial ban of the software.

According to Yale Director of Information Technology Services Daniel Updegrove, that school banned Napster use from 9 a.m. to 5 p.m. on weekdays because the service was using up to one-third of the network bandwidth.

Howard King, a lawyer for Metallica, told the Yale Daily News that the band interpreted this partial restriction as a blatant disregard for copyright law.

In late April, Yale implemented a full ban of Napster use on its campus, and Metallica dropped the school from its lawsuit.

King did not return several requests for comment.

Fair Harvard?

Meanwhile, because Harvard hasn't received any legal notification of copyright infringement from artists, University Attorney Allan A. Ryan Jr. says that the university has not considered whether to restrict access to Napster.

Were Harvard to receive such legal notification, Ryan says it is unclear whether the University would take action.

"I don't think there's an obligation to prevent our users from accessing protected material over the Internet," Ryan says.

Weld Professor of Law Charles R. Nesson, however, writes in an e-mail message that universities can be held accountable for such copyright infringements, and the courts cannot give much leeway.

"Judges, in the end, have little choice but to go along with the interests of property," he writes.

According to Professor of Law William W. Fisher III, Harvard is not liable for contributory copyright violations. He adds that the University is most likely not liable for vicarious copyright infringement because it does not financially profit from the violations.

Jonathan L. Zittrain, executive director of the Berkman Center for Internet and Society at HLS, adds that Harvard is not liable because its role is similar to that of an Internet service provider (ISP).

"The law provides that carriers of data are generally not liable," he says.

According to the DMCA, ISPs cannot be held accountable for material transferred over their lines, provided that the transmission of material is entirely automated and not filtered in any way.

This is may be why Yale's partial ban attracted Metallica's attention.

"We do believe that Yale is an Internet service provider and has no liability under the [Digital Millennium Copyright Act]," Yale General Counsel Dorothy Robinson told the Yale Daily News last month.

But according to Updegrove, Yale has acquiesced to Metallica's demands, at least temporarily.

"This is still under review," he writes in an e-mail message.

Franklin M. Steen, director of Harvard Arts and Sciences Computer Services (HASCS), says that his office would only implement a ban under three conditions.

The dean of the College or dean of the Faculty of Arts and Sciences could recommend that HASCS restrict access to Napster's service. The General Counsel's office could do the same, or Steen could decide to block Napster due to a strain on network resources.

"It can use up a lot of bandwidth," Steen says. "We don't think at this point it's so serious that we have to take any action."

He adds that it may not be technically possible to completely block access.

Dean of the College Harry R. Lewis '68 writes in an e-mail message that, from an academic standpoint, there is no reason for his office to recommend blocking the service.

"I have not heard anyone suggest that this particular activity is a source of students' academic problems," he writes, though he did discourage students from partaking in copyright violations. "We expect students not to do anything illegal, and theft of copyrighted material is illegal."

Dean of the Faculty Jeremy R. Knowles also indicated that he would only recommend banning Napster if it caused academic problems among students.

Their Day in Court

Although it is unlikely that universities will be held financially responsible for permitting access to Napster, at the moment it is unclear whether or not Napster itself will prevail in its lawsuits.

On May 5, the District Court of Northern California denied Napster's request for dismissal of the case.

Fisher notes that this case may be comparable to the 1984 Supreme Court decision which ruled that Sony was not liable for producing VCRs--which can be used for copyright infringement--due to the fact that VCR's have other legitimate uses.

"Under the theory of contributory copyright infringement, as clarified in the Betamax case, Napster is only liable for its [MusicShare] technology if it can be shown to have no significant legitimate use," Fisher says.

But both Zittrain and Fisher note that Napster may not prevail due to the fact that, at least currently, Napster's overwhelming use is for copyright infringement.

In any case, according to Fisher, a protracted battle is unlikely. He notes that copyright cases rarely reach the Supreme Court.

Jay P. Bregman, a Berkman Center research affiliate, also notes that Napster may not have the financial resources to conduct a long legal battle.

"[Napster] is a small company, and it remains unclear whether they have the resources or the will to appeal an unfavorable decision."

Fisher feels that a settlement would be a better long-term solution, because it would allow musicians and the recording industry to benefit from the positive uses of MP3s.

"The recording industry is being shortsighted in the vehemence of its attacks on Napster. It would be much wiser to arrange a settlement where it works with Napster to provide legitimate services."

Even if Napster loses, the recording industry will have more battles ahead of it.

Other services, such as a program called Gnutella, lack a centralized server and are thus much harder to block--technologically or legally.

"Other modes of digital distribution like Gnutella have no center, no physical location and create what amounts to a new network of connection with each use," says Nesson. "Open distribution based on programs such as this will be much harder to deal with."

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