California Bar Journal
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California Bar Journal

The State Bar of California


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Front Page - April 2001
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News / News Briefs
Bar foundation gives $50,000 grant to fund Conference of Delegates
Bar hit with $2.35 million fee demand in lawyer dues case
Bush administration ends ABA review of judicial candidates
Special publication in May Bar Journal
Davis appoints two public members to board of governors
George lauds five years of reform
2001 Annual Meeting will be held in Anaheim
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Trials Digest
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Legal Tech - FindLaw: Lawyers' home on the web
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From the President - Butter a slice, not a full loaf
Is it wrong to copy a song?
Letters to the Editor
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Update on ethics
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MCLE Self-Study
Kids and the Law
Self-Assessment Test
MCLE Calendar of Events
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You Need to Know
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Public Comment
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Ethics Byte - 2 new rulings send litigators back to basics
Forgery, grand theft, fraud convictions lead to resignation
Attorney Discipline


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Is it wrong to copy a song?
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John P. O'BanionHey! Back in the bottle! Hey!Unless your name is Rip van Winkle, no doubt that you have heard of Napster. You know, that gangster web site that facilitated trading MP3 files. Wait . . . did I say gangster? Maybe I meant to say "revolutionary." Yes, there is a revolution, a technological and economic revolution. Napster may simply be the victim of an industry that has not kept pace with technological advances or the demands of the consumer.

There are clearly opposing views of the Napster situation. On one hand, the copyright laws clearly prohibit copying and distributing MP3 files by Napster users.

Napster users are not shielded by the fair use doctrine and, by providing a web site that facilitated trading MP3 files, Napster encouraged and assisted with copyright infringement. Judge Marilyn Patel of the Northern District said so, and the Ninth Circuit agreed. As a result, Napster has been enjoined from allowing unrestricted file sharing to take place. The injunction requires that Napster prevent the downloading of songs that the owner (e.g., artist or label) advises Napster that they want to be excluded from downloading.

On the other hand, why should a consumer have to purchase a high- priced CD which has one or two popular songs buried among 10 or more songs that are dogs? Shouldn't a consumer be able to pick and choose the songs that he or she wants, and only pay for those? Few will probably disagree. But Napster users weren't paying for the songs they were selecting; instead, they were engaging in copyright infringement.

As technology advances, so may the needs or desires of the users of that technology. Digital files such as MP3 audio files are easy to copy and easy to transmit. Napster was popular because it was easy for users to link their computers and trade files.

If the music industry wants to protect against unauthorized copying, then the files should be coded in a way that deters copying. However, even the most sophisticated copy protection schemes won't completely stop copying, so a further deterrent is needed. Namely, there should be an economic incentive to purchase the music rather than to copy the music.

Why not simply lower the price, and not force the consumer to buy songs they don't want just so that they can get the ones they want? After all, if legal copies can be obtained at a reasonable price, the incentive to steal is reduced. 

The Napster decision sends a clear message to all: the copyright laws prohibit unauthorized reproduction and distribution of protected works. But isn't the genie already out of the bottle?

A quick search of the internet by the author turned up dozens of Napster alternatives such as iMesh, SwapStation, Audiognome, Musicians, MyNapster, Filenavigator,, Gnutella, Spinfrenzy, and Swapoo. And the list goes on and on.

With widespread use of the internet and the ease of duplication of electronic files, can MP3 file sharing really be stopped? What if the site is located outside the United States? Is Napster but a hollow example of enforcement of the copyright laws?

Even if injunctions are issued against all of the Napster-type sites, new sites will quickly emerge. Further, software is available that permits peer-to-peer file transfers over the internet without even having to use an intermediate site such as Napster. The technology is just too easy and too widespread to shut down completely.

Couple this with a generation of technologically advanced individuals who don't even understand why the copyright laws should apply to personal use, and you have a potential revolution. Perhaps we are hearing a young and rebellious generation voice their opinion that music is for everyone and its distribution should not be so limited. Perhaps we are being told that the copyright laws should be changed. Yes, the labels and artists should be fairly compensated, but consumers need to be protected from unreasonable pricing as well.

If the recording industry wants to keep pace with technology and protect the rights of the artists and labels, then it needs to take affirmative measures to prevent copying while, at the same time, allow the consumer to purchase only the songs that he or she wants at a reasonable price.

In turn, the consumer must respect the copyright laws and not copy, or assist others with copying, music without the authorization of the owner. Widespread defiance of the copyright laws, such as is evidenced by the plethora of internet sites devoted to sharing MP3 files, does not make the activity legal.

If a change in the copyright laws is desired, there are legitimate ways that the framers of our Constitution have provided to do so.

John P. O'Banion, a partner in O'Banion & Ritchey LLP in Sacramento, is chair of the Intellectual Property Section of the State Bar of California. He is a registered patent attorney and practices exclusively in the area of intellectual property.