Concise Statement of
Identity of Amici Curiae,
The Association of American Physicians &
Surgeons, Inc. (“AAPS”) is a non-profit organization dedicated to defending the
practice of private medicine. Founded
in 1943, AAPS publishes a newsletter and journal and participates in litigation
in furtherance of its goals of limited government and the free market. Central to the interests of AAPS are the
First Amendment rights of association and speech at issue in the case at bar,
which are essential to limiting government encroachment on the marketplace of
ideas, values, and health. In
particular, AAPS is concerned that the suppression of Web sites like Napster
merely for referring internet[1]
users to other information or other users is unjustified both economically and
constitutionally. The injunction by the
court below, if upheld, will likely have a profound chilling effect on the
dissemination of important therapeutic medical information to users over the internet.
Eagle Forum Education & Legal Defense Fund
(“Eagle Forum ELDF”) is an Illinois nonprofit corporation organized in
1981. Eagle Forum ELDF’s mission is to
enable conservative and pro-family men and women to
participate in the process of self-government and public policymaking so that
America will continue to be a land of private enterprise, individual liberty,
and respect for family integrity. The
freedom of private citizens to associate over the internet for economic and
cultural purposes is an objective that Eagle Forum ELDF defends through
education and participation in significant legal cases. Eagle Forum ELDF is particularly concerned
that the injunction by the court below, if upheld, will likely have a harmful
effect on the dissemination of political, economic and cultural information
over the internet.
Congress has intentionally refrained from regulating the
internet, and consistent with this intent Napster has provided a directory
service that facilitates the non-commercial sharing of music over the
internet. This Napster innovation,
based on advances in the internet, falls within the intention of Congress to
keep the internet deregulated. Specifically,
the Audio Home Recording Act (“AHRA”) and the No Electronic Theft Act (“NET”)
fully allow the Napster innovation at issue here, and this Court should not
impose a regulation on Napster that Congress itself has declined to
impose. Internet innovations are vital
to our economy and our constitutional rights, and where Congress has refrained
from interfering, so should this Court.
Indeed, the rapid advances in internet technology make it
unlikely that the innovations could be stopped even if it were desirable to do
so. Economically, it is not desirable
or feasible to block innovations that, like the Napster innovation here,
eliminate substantial transaction costs of distribution. As outdated methods of distributing
information are supplemented by more efficient directory-based non-commercial
distribution, the resultant reduction in transaction costs promotes more music
creation. The internet is, above all,
an eliminator of costs of distribution that burden the economy, and Nobel
laureate economist Ronald Coase proved that an optimized economy results from a
no-transaction-cost system. Just as our
overall economy is lifted by the internet, the creation and consumption of
music is lifted by non-commercial internet sharing as well.
A few special interests,
such as plaintiffs, may find their role diminished in the new economy of the
internet, but the rest of the world benefits greatly from removal of
middlemen. The revenue to plaintiffs
may even increase given a more music-educated public. Given the clear economic benefit of internet distribution –
benefit even to plaintiffs due to the popularity gain – one wonders if their
real fear is even economic. As Napster
provides artists with a new means of popularizing music, the real threat to
plaintiffs may be a loss of control, and vulnerability to replacement by a more
internet-friendly distributor of music in the new economy. Loss of control by an entrenched private
party due to technological advances, however, is not an interest worthy of
protection by this Court.
The ultimate threat to plaintiffs is not even from Napster,
but is from the growing exercise of freedom of association rights by internet
users. The internet facilitates
peer-to-peer relations, and Napster is just one of many manifestations. The First Amendment protects these
associative rights, and they cannot be infringed where, as here, there is no
compelling state interest. When random
individuals meet on the internet to discuss and share music, the plaintiffs
risk losing some of their control.
However, First Amendment rights do not lose their protections simply
because someone else’s interests are harmed, be it harm to a politician or harm
to a profit-maximizing corporation.
That plaintiffs’ interests are harmed by an exercise of internet users’
First Amendment associative rights is no justification for infringing on those
rights. Moreover, the injunction below
is overbroad because it quashes many indisputably lawful associations through
Napster.
Enjoining the rights of Napster and its users here would
have an enormous chilling effect on many other desirable internet
ventures. Any Web site that brings
individuals together, or points them elsewhere and thereby may incidentally
facilitate unlawful activity, would be in jeopardy. Web sites that discuss medical treatments approved in foreign
countries, but not approved in the United States, would be at risk of being
shut down by the government in the name of reducing unlawful activity. Web sites where individuals may discuss
civil disobedience would likewise be at risk.
Investments in the Napsters-of-the-future in areas far afield from music
would also be chilled due to a heightened risk of an injunction putting the Web
site out of business.
At stake in this litigation is far more than how music is
distributed. The remarkable potential
of the internet in facilitating peer-to-peer communications and relationships
is up for grabs in this dispute. Shall
a special interest like plaintiffs’, which is threatened by increased
associative activity among the public, be able to shut down an internet
facilitator of such associations? Shall
an entity threatened by dissemination of information over the internet be able
to censor such dissemination? To
contemplate the implications of the injunction by the court below is to require
reversal of it.
The lower court injunction is a judicial attempt to
regulate internet communications, and its character and scope are unlike
anything that has been permitted before. Regulations of this sort have been
consistently rejected by Congress.
When digital audio recording
equipment first started to enter the consumer marketplace, the Supreme Court
decided in favor of the new technology.
See Sony v. Universal, 464 U.S. 417 (1984). When the industry turned to Congress for
statutory relief, Congress debated many of the principles at issue here, and
passed the 1992 Audio Home Recording Act (“AHRA”). 17 U.S.C. §§ 1000-1008.
The statutory compromise was that the music industry would get a royalty
on all equipment that was primarily for music, such as Digital Audio Tape
(“DAT”), but that generic computer equipment like computer hard drives would be
royalty-free. Congress codified the
doctrine of Sony v. Universal as follows: “No action may be brought ...
based on the noncommercial use by a consumer.”
17 U.S.C. § 1008. As held by the
Ninth Circuit, "the Act does not broadly prohibit digital serial copying
of copyright protected audio recordings.
Instead, the Act places restrictions only upon a specific type of
recording device." RIAA v.
Diamond, 180 F.3d 1072, 1075 (9th Cir. 1999).
The lower court rejected
application of the safe harbor provision of the AHRA by noting that the lawsuit
was not brought under the AHRA. Opinion
II.C n.19. But that misses the point of
the AHRA exemption: Congress has determined that there is no direct infringement
in “noncommercial use by a consumer” using computer equipment, including use over
the internet. Without a basis for a
direct infringement claim, plaintiffs lack any sustainable claim against
Napster for contributory or vicarious infringement as well.
Congress was prudent in
creating a safe harbor for computer equipment in passing the AHRA. As internet growth has demonstrated,
computer use has a pervasive and highly beneficial impact on our entire
economy. This is a decision for
Congress to resolve, and Congress did resolve it in favor of computer
users. To address the issue of royalties,
Congress required royalties on music equipment even if used to copy non-musical
data or to copy music with authorization, but Congress did not require
royalties on computer equipment even if used to copy musical data without
authorization. This was a sensible
legislative compromise, and one that should not be altered by this Court.
As the Ninth Circuit held,
the safe harbor for computer equipment was intentional:
The district court concluded that the exemption of
hard drives from the definition of digital music recording, and the exemption
of computers generally from the Act’s ambit,
“would effectively eviscerate the [Act]” because “[a]ny recording device could evade [] regulation
simply by passing the music through a
computer and ensuring that the MP3 file
resided momentarily on the hard drive.”
RIAA I, 29 F. Supp. 2d at
630. While this may be true, the Act
seems to have been expressly designed to create this loophole.
RIAA v. Diamond, 180 F.3d at 1078. Professor Lessig reiterated this below: “The express intent of Congress in that
[AHRA] act was to leave private, noncommercial home recording unregulated by
copyright law.” Lessig Decl. ¶ 46.
There are several reasons
for Congress to draw the line for copyright where it did. First, by imposing a royalty and copying
restrictions on digital audio recording equipment and not computers, Congress
provided the music industry with an incentive to promote quality digital music
on its own equipment, instead of just waiting to charge royalties for
innovations developed independently by the computer industry. Second, the computer and digital network
markets are more important to the economy and the public good than music, so
Congress wanted to make sure that technological innovation in that broader
market was not impeded by music royalty requirements. Third, personal noncommercial copying generally cannot be stopped
anyway without unacceptable intrusions into fundamental liberties. Fourth, the development of music will be
better for all concerned if there is a certain amount of unlicensed music
sharing, just as publishing is enhanced by a certain amount of “fair use”
copying. All of these rationales
support the safe harbor created by Congress for the activity at issue here.
Nor does the No Electronic
Theft Act (“NET Act”) prohibit the activity at issue here. 17 U.S.C. § 506. This Act sets a threshold of $1000 in retail value on the amount
of permissible copying within a 180-day period, a threshold that most Napster
users are unlikely to exceed. More
importantly, the act only bars willful infringement, not just copying. The Act expressly provides that “evidence of
reproduction or distribution of a copyrighted work, by itself, shall not be
sufficient to establish willful infringement.”
Id.
The NET Act does not
criminalize the copying that is authorized by the AHRA, and Congress has not
otherwise undermined the safe harbor of the AHRA that protects the copying
here. The NET Act imposes criminal
penalties for infringement, and without infringement there is no penalty. The copying at issue here is within the AHRA
safe harbor, and thus not criminalized by the NET Act.
The court below erred by not
making a determination as to whether Napster users fit into the AHRA safe
harbor. If AHRA protects most Napster
use as legitimate, then the court should not impede the legitimate copying that
Napster facilitates. To enjoin this
internet innovation is to undermine the Congressional policy against regulating
the internet.
Every new technology that is
useful and cheap will be used, even if it tramples on the pre-existing economic
order. It is inevitable that cheaper
products will replace more expensive products, and that economically efficient
services will replace inefficient ones.
These changes are nearly universally recognized as good and progressive,
and are largely unstoppable.
Napster offers internet and
directory services that are convenient for music listening, and are not
radically different from related services offered elsewhere. Nearly all computers now offer peer-to-peer
networking and a file transfer protocol.
Directory services such as those of Yahoo and AltaVista have become
indispensable to modern life. Any
attempt to hinder this progress would be misguided and would only delay
economic progress. And if such an
attempt is to be pursued, Congress would be the better forum for weighing the
various issues and reaching a compromise.
When the video tape recorder
(VCR) was developed and introduced in the market, and widespread unauthorized
copying of broadcasts became commonplace, the Supreme Court pointedly refused
to interpret the law in a way that would stifle a new technology, saying that
only Congress should do that.
“Repeatedly, as new developments have occurred in this country, it has
been the Congress that has fashioned the new rules that new technology made
necessary.” Sony, 464 U.S. at
431. Later, Congress refused to pass a
law limiting the sales or use of VCRs, thereby confirming the wisdom of the
Court’s forbearance. This Court
likewise should refrain from interfering with Napster’s innovation.
Plaintiffs cannot enforce copyrights that have been
misused. Practice Management Information Corp. v.
American Medical Ass’n, 121 F.3d 516
(9th Cir. 1997), modified, 133 F.3d 1140 (9th Cir. 1998), cert.
denied, 119 S. Ct. 40 (1998). In
that case, this Court flatly rejected claims by the copyright holder that
disaster would occur if it could not enforce its copyright. Enforcement of a misused copyright is
contrary to the public interest, and only a net overall public benefit can
result from denying its enforceability.
This precedent is binding and dispositive in this case to the extent any
of the plaintiffs has misused copyrights that they seek to enforce here. See also Lasercomb America, Inc. v. Reynolds, 911
F.2d 970, 977-79 (4th Cir. 1990) (copyright misuse defense "forbids the
use of the copyright to secure an exclusive right or limited monopoly not
granted by the Copyright Office"); DSC Communications Corp. v. DGI
Techs., Inc., 81 F.3d 597, 601 (5th Cir. 1996); Triad Sys. Corp. v.
Southeastern Express Co., 64 F.3d 1330, 1337 (9th Cir. 1995); Supermarket
of Homes, Inc. v. San Fernando Valley Bd. of Realtors, 786 F.2d 1400, 1408
(9th Cir. 1986).
There are two clear bases
for finding that plaintiffs have misused the copyrights they seek to enforce
here. First, there is overwhelming
evidence that plaintiffs have engaged in price-fixing with respect to their
copyrights. Several months ago, the FTC
found the big five music labels guilty of a price-fixing scheme for retail
music CDs, and just this month 28 states have filed a lawsuit for hundreds of
millions of dollars in damages. See
CNET, http://news.cnet.com/news/0-1005-200-2464013.html (quoting the New York Attorney General
saying, "When there is illegal activity to fix prices -- as was the case
here -- the consumer is always the loser."). The big five music labels have also made a concerted effort to
thwart the availability of online MP3s.
See Kohn Decl. ¶ 2 ("Emusic.com presently does not have licensing
agreements with any of the five major record companies"). If true, this copyright misuse renders the
copyrights unenforceable against Napster.
See Practice Management, 121 F.3d at 520-21 (denying
enforceability of AMA’s copyright due to its misuse).
Second, the popularity of
Napster is itself an indication that plaintiffs are impeding the efficiency of
the market, by imposing inflated prices or obstructing ease of access. Other industries vulnerable to competition
by the internet, such as the newspaper industry, do not see a stampede of angry
users away from their product to obtain it on the internet. The public has demonstrated that it is
willing to pay a fair and competitive price for a product even though it may be
available for less through an unauthorized market. To the extent plaintiffs are losing business to Naspter use –
which remains doubtful and unproven – that loss in business is likely
attributable to plaintiffs’ non-competitive pricing and distribution policies.
The internet is a
peer-to-peer network, with servers being used for indexing and other functions.
There is a consensus that growth of the internet will confer substantial
benefits on the economy, and accordingly Congress has deliberately refrained
from interfering with that growth with taxes or regulation. As with any technological innovation, there
is the possibility that older industries and business models will be replaced
by newer, more efficient ones, creating the possibility of using new technology
for unauthorized or even illegal activities.
While special interests have clamored for protection against the
inevitable changes to be caused by the internet, Congress has properly “Just
Said No” to demands for regulating the internet to protect special interests
such as plaintiffs.
The injunction by the court
below granted plaintiffs a remedy that Congress has repeatedly refused to give
them. The issue of noncommercial
digital copying was debated in Congress in conjunction with passing AHRA in
1992 and the NET Act in 1998. Both
times Congress properly refused to enact the special protections that
plaintiffs now seek from this Court.
Congress has weighed the benefits to the public of an unregulated
internet against the costs that technological change imposes on existing
interests, and Congress has consistently chosen to keep the internet
unregulated in all relevant respects – and this Court should do likewise. See, e.g., AT&T Corp. v. City
of Portland, 216 F.3d 871, 878-79 (9th Cir. 2000) (invalidating
a local regulation concerning the internet because “[t]hus far, the FCC has not
subjected cable broadband to any regulation, including common carrier
telecommunications regulation. …
Congress has reposed the details of telecommunications policy in the
FCC, and we will not impinge on its authority over these matters”).
Most recently, Congress considered regulating against
internet “piracy” in the “Collections of Information Antipiracy Act.” H.R. 354.
It has been introduced in the last two sessions of Congress and multiple
hearings have been held. It would
provide plaintiffs and others with the ability to assert an ownership-like
interest in database listings against alleged “pirates” such as Napster in
order to prevent them from posting directories on the internet. H.R. 354 was backed by numerous established
industry interests, ranging from the real estate industry (worried about
unauthorized internet postings of houses for sale) to the legal database
industry (worried about unauthorized posting of court decisions) to the AMA
(trying to reverse the Practice Management decision). See
http://www.databasedata.org/hr-354/hr354.html (listing links to all relevant
documents concerning H.R. 354, including testimony). Congress, in deference to the overall benefit from an unregulated
internet, has properly refused to pass this bill.
The power and efficiency of
the internet derive from its peer-to-peer communication. The architecture of the World Wide Web is
decentralized and disorganized. What makes it useful for most people are the
various directory services such as Yahoo, AOL, AltaVista and Napster. If this Court were to impose limits on those
directories or search engines, then it would have a profound chilling effect on
the efficiency of the internet. See,
e.g., http://www.searchenginewatch.com (providing an overview of internet
search engines). Millions of internet
users depend entirely on links in the directories and search engines to find
information and publish their facts and opinions. Like the inventions of the telephone, radio, television,
photocopy machine, and VCR before it, the internet facilitates petty “piracy”,
but Congress and the Courts have always refrained from choking off new
technology in order to stamp out a little “piracy”.
The injunction below
constitutes an unprecedented regulation of the internet. It mandates that servers providing directory
functions must guarantee to copyright holders that no one is making contact
with anyone else in order to exchange copyrighted material. The injunction subjects every directory
service – and hence millions of Web sites – to the risk that an adversary or
the government may obtain court-imposed restrictions on how its directory
service is being used. The injunction
below inevitably chills the amount of information flowing over the internet,
and thereby undermines the very benefits of the internet itself.
Regulation to chill communication on the internet should
only come from Congress, if at all. The
injunction below operates as a regulation beyond any regulation permitted by
Congress to date. The injunction below
should be vacated.
Plaintiffs, as intermediaries, do not have the same
interests as the artists or the public.
By their very charters, plaintiffs are devoted to maximizing profits for
their own shareholders – and therefore seek to perpetuate the traditional
channel of distribution that generates those profits. To the extent plaintiffs’ interests conflict with the purpose of
the Copyright Clause and with economic efficiency, such interests are unworthy
of protection here.
Here the issue is where to draw
the line of music ownership demarcating plaintiffs’ economic interests as
intermediaries on one side, and the interests of the public in the creation and
distribution of music on the other.
While plaintiffs portray their interests as tracking the interests of
the artists and the public in new music, that is clearly not correct. Rather, plaintiffs have their own particular
economic interest in distribution-related revenue consisting of mark-up costs
to consumers. Under the plaintiffs’
business model, consumers must pay substantial mark-up costs to intermediaries
in obtaining music. Plaintiffs profit
from these consumer transaction costs and thus seek to perpetuate them.
In addition, plaintiffs
often find it profitable to restrict the creation of new music that might
interfere with existing profitable product lines. For example, plaintiffs contractually require artists to limit
their output in order to protect the current revenue stream. When the public is demanding more from a
popular artist at a particular time, plaintiffs often use that demand to
increase profits rather than artistic supply.
These activities –
perpetuating transaction costs and restricting supply – are economically
inefficient and contrary to the purpose of the Copyright Clause, which states
that its purpose is “[t]o promote the Progress” of arts. U.S. Const. Art. I, sec. 8, cl. 8. In the absence of these transaction costs
and output constraints, an optimal amount of music creation and consumption
would occur “by the inexorable operation of the Coase Theorem.” Capital Communications Fed. Credit Union
v. Boodrow (In re Boodrow), 126 F.3d 43, 59 (2d Cir. 1997) (Shadur, J.,
dissenting), cert. denied, 118 S. Ct. 1055 (1998). Cf. United Housing Found., Inc. v.
Forman, 421 U.S. 837, 863 n.3 (1975) (Brennan and Marshall, JJ.,
dissenting) (citing article containing Coase Theorem in criticizing a narrow
view of securities). There is no
justification for judicial protection of the economic inefficiencies imposed by
plaintiffs for their own financial benefit.
In bypassing the
intermediaries like plaintiffs, Napster has dramatically reduced the
transaction costs associated with searching and obtaining music. A consumer who visits Napster is free from
the inventory decisions made by intermediaies, and from the substantial
transaction costs associated with searching for an inventory containing a
desired work and then traveling there to examine and purchase the work. Under the Napster model of distribution, the
consumer and artist are freed from the substantial mark-up in costs imposed by
the intermediaries in distributing music in the customary manner. Napster creates an essentially
transaction-cost-free world for the future distribution of music from artists
to consumers.
This Court has observed
that, “given a world of no transaction costs, economic optimality does not
depend on the allocation of a property right … to one party or another; the two
parties can simply bargain to the optimal solution.” Leisnoi, Inc. v. Stratman, 154 F.3d 1062, 1071 (9th
Cir. 1998) (citing R.H. Coase, The Problem of Social Cost, 3 J.L. & Econ.
1, 2-15 (1960)). Hence, as long as
transaction costs are not imposed, an optimal level of music creation and
distribution will occur regardless of where the demarcation line of ownership
is drawn between plaintiffs and the users of Napster. Plaintiffs’ argument that allowing users of Napster to copy music
would somehow inhibit the creation of music is economic nonsense under the
above teaching of Leisnoi and Nobel Laureate Ronald Coase. Conferring the right to internet-based,
non-commercial copying to Napster users does nothing to inhibit an optimal
level of music creation and distribution.
The profits of
plaintiffs, in contrast, require maintaining transaction costs that have
inhibited music distribution in the past.
Plaintiffs insist that the no-transaction-cost world of Napster be
enjoined in order to continue their high-transaction-cost regime. Under the Coase Theorem, such an injunction
can only thwart the optimal creation and consumption of music. See Leisnoi, supra. Those who profit from transaction costs,
such as plaintiffs, are always threatened by a transformation to a Coasean world
of no transaction costs. But
plaintiffs’ loss is the economy’s gain, as the Coasean world ensures the
optimal level of music creation and consumption for a net overall benefit. See, e.g., Chrysler Corp. v.
Kolosso Auto Sales, 148 F.3d 892, 894 (7th Cir. 1998) (“The
parties thus have divergent interests, but they can be expected to negotiate to
the solution that maximizes the net benefits of their relationship.”) (citing Coase, supra).
In an efficient market,
noncommercial activity is rarely (if ever) any threat to commercial activity.
Businesses provide goods and services that have value in the marketplace. When
a business complains about competition
from noncommercial activity, it is invariably because its prices are too high.
There is no economic justification for protecting commercial businesses from
noncommercial activity.
The attempt by plaintiffs to defend their entrenched
economic interests is akin to horse-and-buggy manufacturers in the advent of
the automobile era. A new technology
arrived that changed the means of getting from here to there. New technology that brings greater
efficiency can only increase the overall level of desired activity, be it
visiting a friend or finding music to which to listen. The new technology dramatically reduces
transaction costs and thereby greatly expands the public participation in the
activity. This case is even more
compelling than the horse-and-buggy example because it is not known whether
plaintiffs will even be hurt by the innovation brought by Napster. Much like the positive impact of the
internet on newspapers, Napster may increase overall public interest in music
to an extent that offsets any decline in profits to plaintiffs.
Music creation will not cease due to Napster any more than
the news printed by newspapers could ever cease due to the internet. To the extent musicians are motivated by the
music itself or by public acclaim and publicity, as most were for thousands of
years, that incentive only increases with the efficient distribution which Napster
brings. To the extent some musicians
are motivated solely by financial reward, the Coase Theorem ensures that a more
efficient level of compensation will develop upon removal of the transaction
costs imposed by plaintiffs. The form
of that compensation may not require an intermediary such as plaintiffs, and
may consist of concert sales, pay-per-listens, web site ads, personalized
songs-upon-request, advertising endorsements, or countless other ways to be
determined best by the operation of the free market.
Economic efficiency
militates for eliminating transaction costs – and so does the Copyright
Clause. That Clause only contemplates
legal incentives to create music, not legal protection of transaction costs
imposed by intermediaries such as plaintiffs.
Plaintiffs have overstepped their role by demanding perpetuation of
transaction costs that frustrate more efficient and broader listening to music.
In addition to imposing transaction costs, plaintiffs also
attempt to perpetuate the ability of its members to restrict the output of new
music to the public. In maximizing
their profits on existing product lines, plaintiffs routinely restrict the
output of new music by artists, particularly at times when their music is in
great demand. “[B]y restricting its own
output, it can restrict marketwide output and, hence, increase marketwide
prices. Prices increase marketwide in response to the reduced output because
consumers bid more in competing against one another to obtain the smaller
quantity available.” Rebel Oil Co.,
Inc. v. Atlantic Richfield Co., 51 F.3d 1421 (9th Cir. 1995) (citing Philip
Areeda & Donald F. Turner, Antitrust Law § 501, at 322 (1978) and Ball
Memorial Hosp., Inc. v. Mutual Hosp. Ins., Inc., 784 F.2d 1325, 1335 (7th
Cir. 1986)). Plaintiffs even demand
that artists contractually forgo their rights to distribute over the internet.
For example, the rock
musician named Prince was one of the most creative and popular musicians of the
past 20 years. He described the output
restrictions placed upon him by a plaintiff as follows:
Warner limited the amount of music he could
release. “Warner wanted a record only
every 18 months. I could release a record every seven months. I could not
record when I wanted to.” And when one
of the label's best-selling recording artists wanted to release a three-CD set,
“they said they don’t want to do this,” he added.
Reuters, Nov. 9,
1999, http://wallofsound.go.com/news/stories/theartist-110999.html.
Such restriction on output is economically
inefficient. Restriction on output
prevents certain original music from being created and distributed, music that
could bring benefit to the public. No
one, not even plaintiffs or the Recording Industry Association of America, Inc.
(“RIAA”), can be as smart as the public itself in deciding what new music it
would enjoy. Often the biggest hits are
complete surprises to the recording industry and all the experts, and only
became hits because of spontaneous caller demand to a remote radio station that
perchance played them. The free market,
not the profit motives of intermediaries such as plaintiffs, is the best facilitator
of the efficient level of music creation.
The suppression in output by plaintiffs frustrates this operation of the
free market. By ensuring maximum output
of music, Napster removes this artificial constraint imposed by plaintiffs.
Nor are plaintiffs’ efforts to restrict output permissible
under the Copyright Clause. That
clause, in contrast to most other constitutional grants of authority to
Congress, places an express limitation on its purpose: “To promote the Progress of Science and
useful Arts.” U.S. Const. Art. I, sec.
8, cl. 8. Congress is thereby without
authority under this clause to grant special rights to any group, such as
plaintiffs, for a profit-maximizing purpose that does not “promote the
Progress” of arts.
Limiting the output of creative artists plainly fails to
“promote the Progress” of artistic works.
Had Mozart worked under the thumb of an output limitation, some of his
best works may never have been created and immediately enjoyed. No one tells Stephen King that he is writing
too many novels. Artists are known to
work in bursts of creativity, and it is contrary to the Copyright Clause for
plaintiffs to limit musical output by shutting down Napster. Such an output limitation is directly
contrary to the constitutional requirement that copyright protections be limited
to the goal of promoting the progress of the arts.
As recently emphasized twice by the Supreme Court this year
– in California Democratic Primary v. Jones and Boy Scouts v. Dale
– the strict scrutiny standard of review protects associative rights. This standard of review must apply to
association on the internet as strongly as it does off the internet. Infringements upon associative rights
require a compelling state interest, and even then the restriction must be
tailored narrowly to satisfy such interest.
The court below failed to apply this standard in enjoining
Napster’s internet-based directory service.
No compelling state interest exists for restraining Napster’s
facilitation of association by providing an internet-based directory
service. Napster merely facilitates
association by internet users for the purposes of chatting and exchanging music
in a non-commercial manner. Plaintiffs’
claims, even taken in a light most favorable to them, at most involves private
monetary interests and does not implicate any injury to a public interest. Such private injury cannot justify
infringing upon the First Amendment associative rights of Napster and its
users.
Moreover, the restraint on Napster’s exercise of its
associative rights is not narrowly tailored to a state interest, as required by
the Supreme Court. The injunction below
is overbroad in its scope and infringes upon the lawful associative rights of
Napster and its users to an extent far more than necessary. The potential violation of laws or rights by
users of Napster’s directory service does not justify censoring the directory
service itself.
Amici oppose the
chilling effect that the injunction against Napster would have against numerous
Web sites. Many Web sites provide links
or other information that enable visitors to engage in lawful as well as
unlawful activity. Health-related Web
sites, for example, often discuss potentially life-saving therapies approved in
foreign countries but not approved in the United States and, if the injunction
against Napster is upheld then those Web sites may be shut down as well. Such infringement of the internet right of
free association in the absence of a compelling state interest is
unconstitutional. Shutting down the
Napster Web site at the request of the private plaintiffs would impermissibly
chill numerous other Web sites that facilitate associations by internet users.
In Roberts v.
United States Jaycees, 468 U.S. 609 (1984), the Supreme Court
emphasized that "implicit in the right to engage in activities protected
by the First Amendment" is "a corresponding right to associate with
others in pursuit of a wide variety of political, social, economic,
educational, religious, and cultural ends." Id. at 622 (emphasis added). This fundamental principle was recently
reiterated by the Supreme Court in Boy Scouts v. Dale, 120 S. Ct. 2446,
2451 (2000) (noting further that “protection of the right to expressive
association is ‘especially important in preserving political and cultural
diversity and in shielding dissident expression from suppression by the
majority’) (quoting Jaycees, 468 U.S. at 622) (emphasis added).
Providing a directory
service so that individuals may associate with each other for musical purposes
plainly falls within the “cultural ends” protected by the First Amendment. Under Jaycees and Boy Scouts,
a directory service having “cultural ends” is on equal footing with a directory
serving political, social, educational, or religious ends. Under these precedents, “cultural diversity”
is entitled to as much First Amendment protection as “political … diversity.”
Napster’s enormous directory service for music – both music
favored by the record industry and music disfavored by it – is the epitome of
“cultural diversity” protected by the First Amendment above. Before Napster, a handful of plaintiffs
selected and screened the music to be distributed to the public, and one fan of
a work had no means of chatting with other fans of the same work. Cultural diversity in this music was also
limited to the preferences and financial incentives of the plaintiffs. Napster, however, has opened the cultural
diversity to the world’s unbounded disk space.
Napster’s provision of a directory service to tap into this enormous
cultural diversity, and allow fans to find each other based on music titles and
to chat with each other, is protected by the First Amendment against restraints
lacking a compelling state interest.
No such compelling state interest could possibly be shown in this case. There’s no risk to public safety at issue here, or threat to our form of government. Even if plaintiffs’ claims were true, then the only risk is merely how many zeros there are in plaintiffs’ annual profits. Such private interest does not even remotely justify an infringement on the First Amendment rights of Napster and its visitors.
Even if there were a compelling interest to infringe upon
the rights of Napster and its visitors, the infringement must be narrowly
tailored to such interest. California
Democratic Primary v. Jones, 120 S. Ct. 2402 (2000). “‘Regulations imposing severe burdens on
[parties’] rights must be narrowly tailored and advance a compelling state
interest.’” Id. at 2412 (quoting
Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997)).
Many uses of Napster’s directory service are clearly
non-infringing, and the court below concedes that a substantial percentage of
use on Napster is unquestionably proper.
Opinion II.B.2 (finding, in reliance on plaintiffs’ own experts, that
more than 70% of the music copied “may be owned or administered by plaintiffs,”
thereby conceding that up to 30% of the copying is unchallenged in this
litigation). Visitors to Napster’s Web
site who find and copy music lacking any copyright restriction against such use
is plainly non-infringing. Over time,
as plaintiffs’ control over music subsides in the face of Napster and other
developing alternative channels of distribution, the quantity of material copied
in a clearly non-infringing manner over Napster would inevitably increase.
The injunction below, however, operates to prevent
perfectly lawful activity as well as arguably infringing activity. The court placed the burden on Napster to
guarantee that no copying, not even fair use copying, can occur without
authorization. “Defendant must ensure
that no work owned by plaintiffs which neither defendant nor Napster users have
permission to use or distribute is uploaded or downloaded on Napster.” Order at 39. This unnecessarily chills Napster (and analogous Web sites) from
facilitating lawful activity, and thereby constitutes an unconstitutionally
overbroad injunction. The Court could
easily have required plaintiffs first to identify specific music and demonstrate
that plaintiffs can block copying of it, and only then require Napster to take
steps to restrict sharing of that music to be within reasonable fair use
limits.
C. Shutting Down Napster’s Directory Service Would Have an Undesired Chilling Effect on Many Other Beneficial Web Sites.
Amici are
particularly opposed to the precedent that the injunction against Napster would
establish with respect to numerous other directory services, search engines,
and Web sites on the internet. Shutting
down a directory service because some use it for arguably unlawful purposes
would have a dreadful chilling effect on other Web sites that can arguably be
used for unlawful purposes, too. Even
worse, mainstream search engines could be forced to filter their query results
based on criteria supplied by special-interest groups such as plaintiffs or the
RIAA.
For example, a large percentage of internet users search for medical information, often for life-threatening illnesses such as AIDS or terminal cancer. Medical Web sites providing references to users inevitably facilitate the procurement by users of therapeutic drugs that are approved in foreign countries but not in the United States. The same reasoning behind the injunction against Napster would chill or even require shutting down Web sites that provide medical information to internet users. The government could simply cite the Napster injunction as precedent for shutting down any Web site that may incidentally facilitate unlawful activity, including Web sites that provide or reference discussions of therapeutic drugs not approved in the United States.
Or suppose a mother has a boy with attention-deficit
disorder and is considering a recommendation that he take Ritalin. A quick search on Yahoo normally yields a
variety of sites including support groups, pharmacies, instructions and
warnings about safe usage, alternative medications, diagnostic criteria, and
sites that are critical of the use of Ritalin for a variety of reasons. But “Ritalin” is a registered trademark, and
some of the official information is copyrighted. What if the owner of Ritalin asserted its intellectual property
rights, and demanded that Yahoo only provide authorized links on Ritalin? The outcome would be that criticism of the
use of Ritalin would be effectively silenced.
Indeed, already the venture capital available to fund
internet-based information providers has been threatened by this
litigation. As reported in the
widely-respected Economist, the
chilling effect on investment in the internet from this litigation could be
enormous:
The legal juggernaut set in motion by the recording
industry to rid itself of Napster is threatening to take with it more than just
the upstart firm whose software enables music fans to share each other's CD
collections free on the Internet. … If
… things go badly for Napster in the higher courts, litigious music and film
companies will most likely turn their sights on the venture-capital firm that
backed Napster, Hummer Winblad, and the programmers who made Napster possible.
At first sight, this looks like a denial of two well-established points of law:
the idea that the sins of a corporate entity cannot be visited on its
investors; and the traditional defence of people who make things such as guns
and cars that they cannot be held responsible for the way others use their
products. … Backers of Napster-like
"peer-to-peer" start-ups, which harness the power of millions of
linked personal computers to create huge networks, could become vulnerable even
if their role in infringing copyright is deemed inadvertent.
“Hummer’s Napster Bummer,” The Economist, Aug. 12-18, 2000,
http://www.economist.com/editorial/freeforall/current/index_wb0340.html.
IV. Conclusion.
The decision below should be
reversed in its entirety.
Respectfully
submitted,
____________________
Karen B. Tripp
Attorney at Law
1100 Louisiana St., Ste. 2690
Houston, Texas 77002
Phone: (713) 658-9323
Fax:
(713) 658-9410
Ktripp@tripplaw.com
Certificate of Compliance
Pursuant to Fed. R. App. 32(a)(7)(C)
and Circuit Rule 32-1 for Case
Number 00-16401
I certify
that: (check appropriate options(s))
____1. Pursuant
to Fed. R. App. P. 32(a)(7)(C) and Ninth Circuit Rule 32-1, the attached opening/answering/reply/cross-appeal
brief is
˙
Proportionately spaced, has a typeface of 14 points or more and
contains _________ words (opening, answering, and the second and third briefs
filed in cross-appeals must not exceed 14,000 words; reply briefs must not
exceed 7,000 words),
or
is
˙
Monospaced, has 10.5 or fewer characters per inch and
contains ________ words or __________
lines of text (opening, answering, and the second and third briefs filed in
cross-appeals must not exceed 14,000 words or 1,300 lines of text; reply briefs
must not exceed 7,0000 words or 650 lines of text).
____2. The attached brief is not subject to
the type-volume limitations
of
Fed. R. App. P. 32(a)(7)(B) because
˙
This brief complies with Fed. R. App. P. 32(a)(1)-(7) and
is a principal brief of no
more than 30 pages or a reply
brief of no more than 15
pages;
˙
This brief complies with a page or size-volume limitation
established by separate
court order dated
______________ and is
˙
Proportionately spaced, has a typeface of 4 point or more and
contains __________ words,
or is
˙
Monospaced, has 10.5 or fewer characters per inch and contains
______ pages or ___________ words or __________ lines of text.
____3. Briefs in Capital Cases
˙
This brief is being filed in a capital case pursuant to the
type-volume limitations set forth at Circuit Rule 32-4 and is
˙
Proportionately spaced, has a typeface of 14 points or more and
contains _________words (opening, answering, and the second and third briefs
filed in cross-appeals must not exceed 21,000 words; reply briefs must not
exceed 9,800 words)
or is
˙
Monospaced, has 10.5 or fewer characters per inch and contains
________ words or _________ lines of text (opening, answering, and the second
and third briefs filed in cross-appeals must not exceed 75 pages or 1,950 lines
of text; reply briefs must not exceed 35 pages or 910 lines of text).
X 4. Amicus
Briefs
˙
Pursuant to Fed. R. App. P. 29(d) and 9th Cir. R. 32-1,
the attached amicus brief is proportionally spaced, has a typeface of 14 points
or more and contains 7000 words or less,
or
is
˙
Monospaced, has 10.5 or fewer characters per inch and contains not
more than either 7000 words or 650 lines of text,
or
is
˙
Not subject to the type-volume limitations because it is an amicus
brief of no more than 15 pages and complies with Fed. R. App. P. 32(a)(1)(5).
___________ _________________________
Date Karen B. Tripp, Esq.
CERTIFICATE OF
SERVICE
I hereby certify that copies of the
foregoing document were sent, by overnight delivery, this __ day of August,
2000, to the attorneys of record listed on the attached sheet:
___________________
Karen Tripp, Esq.
[1] The term “internet” is,
like “television” and “telephone”, merely a non-trademarked generic name for a
pervasive new technology, and thus there is no basis for capitalizing it.