After months of interminable debate about the legality of Napster, today's appellate court hearing was oddly anticlimactic. Standing patiently under the rococo frescoes and stained-glass ceiling of a packed courtroom, lawyers from Napster and the record industry each got exactly 20 minutes to argue over the fate of peer-to-peer technology.
First things first: It's still unclear whether the judges will rule in favor of a preliminary injunction, shutting Napster down until a full trial resolves the case. (That decision could take as long as 30 to 60 days, or it could come this week.)
But despite the brevity of the hearing, the courtroom's attendees were straining to pick up a hint of what, exactly, that decision might be. Surprisingly, judges Mary M. Schroeder, Robert B. Beezer and Richard A. Paez -- who were picked at random to decide whether to uphold U.S. District Judge Marilyn Hall Patel's previous injunction against Napster -- seemed to be more open to a pro-Napster decision than many had expected.
Napster lawyer David Boies once again stressed the Sony Betamax decision, a Supreme Court precedent that ruled that any technology that has substantial non-infringing uses is legal, even if it is being used for copyright infringement. Although Schroeder was dubious about Boies' arguments that there were "substantial" non-infringing uses for Napster -- pointing out that 70 to 80 percent of all current Napster usage is for music piracy -- Boies argued that the Supreme Court was more concerned about "what is it capable of being used for? Otherwise you are depriving the public of something that could be used for non-infringing purposes."
But the main surprise in the courtroom came when Russell J. Frackman, the lawyer for the Recording Industry Association of America, came up to the lectern. The plaintiffs have been relying heavily on a prior case, Fonovisa Inc. vs. Cherry Auction Inc., which held that the owner of a swap meet was responsible if a vendor at that meet was selling pirated tapes. Frackman had successfully used the argument with Patel (who, in her decision, went so far as to call Napster an "electronic swap meet"). And, in a curious a twist of fate, Schroeder had written the decision on Fonovisa; many were expecting her to rule similarly in this case as a result, for the RIAA and against Napster.
But when Frackman began bringing up this history on the bench, Schroeder instead snapped at him, "This is very different from that case," pointing out that the owner of the swap meet had more control over what was going on inside the meet than Napster does over its users. Does this mean that the RIAA's Fonavisa comparison is being discounted?
"That's a really good sign for Napster," says UC-Berkeley law professor and copyright expert Pamela Samuelson. "Because to the extent that the swap meet analogy is not powerful -- to the extent that the judges see something else going in the case (say, the potential uses of peer-to-peer technologies, the existence of infringing and non-infringing uses or the noncommercial nature of the relationship) -- then Napster can be assured that the judges are saying this case doesn't decide the whole thing. It means that the 9th Circuit panel will not just take the case and move on. They'll be assured that the case gets a broader reading."
Beezer also directed a number of critical questions at the record industry lawyers -- pointing out they weren't considering issues of "fair use" and questioning whether the record industry should have wholesale, exclusive control of music distribution on the Internet. He seemed skeptical, too, about whether Napster could really control the actions of two users who were using a direct connection to swap files.
All in all, the three judges were more critical of the RIAA's arguments than Patel had been. That's no guarantee of a decision in Napster's favor, however. Lawyers from both sides were unwilling to speculate about the judges' leanings.
The RIAA's biggest hurdle is the allegation that the industry is trying to shut down a technology that it doesn't like (or, alternatively, sees as its competition). In a press conference afterward, RIAA CEO Hilary Rosen said, "This case has never been about technology, but about what kind of business service Napster offers its users." Later, Boies fired back: "We strongly believe that users can share music on a person-to-person basis without violating the law."
Is there still a chance for settlement? Certainly both sides were civil to each other before and after the hearing. Both sides said they were open to the idea of settling -- and were talking as recently as last Friday -- but Napster alleges that the record labels haven't been realistic about working together on that "business service" that Rosen objected to. Napster CEO Hank Barry says that Napster has approached the record industry with business proposals that would put half a billion dollars in the pocket of the record industry, but the record industry has rejected all proposals while offering "zero ideas" of its own.
Says Barry, "Just as it's clear that the service is legal, it's clear that it's not supported by the industry. What we have now is not an industry-supported model and we want to move to a model that is."
So prepare for another waiting period, as the murkiness of the online copyright issue continues to work its way through the courts. Everyone who is weary of the debate and ready to move beyond it will no doubt relate to Berry's post-hearing sigh: "We're looking for clarity in an unclear world."
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