"The copyright law, like the patent statutes, makes reward to the owner a secondary consideration." U.S. v. Paramount Pictures 334 U.S. 131 (1948).

What part of "secondary consideration" don't you understand ?

The theory is that copyright law is supposed to serve the public first, the author second, and others incidentally third. Copyright has never been intended to give the author a control-freak's bludgeon. Formerly U.S. copyright only covered the sheet music as published. There was no performance right and no mechanical right. Later the public generously added these privileges to the rightsholder's bundle. But copyright still didn't cover recordings themselves, only the music on them. Still later the public generously expanded copyright to cover recordings themselves as well as the music on them. In theory these acts of generosity contained a measure of self-interest: the public gave up a little of its freedom in the short run in order to gain in the long run. In theory these expansions of copyright law were pragmatic policy choices made for the single purpose of promoting "progress of science and useful arts"--that is, of enlarging the public domain. Note that questions of "property" don't arise except where the law adopts a property model--which in the case of copyright it does only partially and is not required to do at all. Even when the copyright law adopts a property-like operation, "property" is simply a descriptive term for how the law works, not a prescriptive term carrying moral weight.

In practice, of course, copyright serves the big media conglomerates first, some authors next, and the public last. The attempt to suppress Napster itself (as distinguished from attempts to stop individuals from unauthorized uplinking) reflects these big-business priorities, as Professor James Boyle points out in this article:

"The real question...is not whether most of the copying on Napster or Gnutella is legal. (It is not). Nor is it whether the users of Napster or Gnutella can cast themselves as the heroes of new musical and artistic utopia. (First, they will have to stop ogling Ms Spears). The question is what all this means for the future of the music industry...

In fact, the biggest threat to the cultural potential of the internet is not digital piracy but the continuing attempt by the music industry to change technical standards and legal rules so as to build its current business plan into the law and the technology of the medium itself."

Because the copyright law has become so much a tool of big business, I consider widespread evasion inevitable, though not commendable. It has been said, "if you want the law to be respected, make the law respectable." If we want our complaints about the Napsterization of our work to carry weight, we need to recognize that the copyright law has become unbalanced and, at the same time as we voice our gripes about Napster, to call for the imbalance to be righted in the public's favor.

Is Napster guilty of some form of contributory infringement ? I don't see we can ban Napster (which is first of all a search engine) unless we are willing to ban all search engines.

One proposal for dealing with unlicensed uplinking is to pursue the individuals who practise it, as described here. Another possibility is to develop some form of special file-sharing license. This idea runs into the privacy questions, as well as the question of how to distinguished unathorized files of copyrighted material from all others. Some sort of (publicly known) sampling technique might be able to establish, without excessive snooping, that a certain service indexed unauthorized files at a rate far above some threshold, and this might trigger licensing liability. Or this approach might still cause problems for search engines like Google. In any case, the question should be resolved by pragmatic policy trade-offs, and the fundamental principles that guide these trade-offs should put our freedom and privacy ahead of allowing writers and performers to squeeze every possible penny of monopoly rent from their work.

T.