Napster ruling recalls 1950s case of 'You pay'

Shortly after Jon Goodman heard about Monday's court verdict threatening the end of Napster Inc., the music-sharing Internet site, he was transported in his mind back to being 7 years old and sitting in a Brooklyn, N.Y., movie theater terrified by the shark in the movie "Jaws" - while his dad sat beside him chortling hysterically.

"He was the only person in the theater laughing, but he was coming up with lines for his song," recalled Goodman, 31, a writer and retired police officer living in Atlantic City, N.J.


His father was novelty songwriter Dickie Goodman, the "Weird Al" Yankovic of his day. His 1975 tune "Mr. Jaws," became a gold record, but only after Goodman changed his way of borrowing others' hit music.

Dickie Goodman had been sued 20 years earlier on behalf of Elvis Presley, Little Richard, Fats Domino and other artists whose works he adapted to create his "joke songs." He eventually lost, the courts saying he could use the work but had to pay.


That was also the message of Monday's 58-page opinion by the 9th U.S. Circuit Court of Appeals panel against Napster, constitutional scholars and music industry officials said yesterday.

"I was not at all surprised," said Robert O'Neil, a law professor, director of the Thomas Jefferson Center for the Protection of Free Expression at the University of Virginia and the school's former president. "The only question is what steps Napster will have to take to reduce its liability."

Legal observers said they don't expect the U.S. Supreme Court to hear an eventual appeal. They also noted that the three-judge appellate panel in San Francisco agreed with much of the decision by U.S. District Judge Marilyn Hall Patel, who moved to shut Napster in July.

If Patel quickly rewrites her order, as the appellate judges sought, and reinstates her injunction, Napster will be forced to cease free song brokering or pay millions of dollars in fines.

The Napster case is impressive because of its scope: roughly 60 million users since it began in 1999 and 300,000 a day being added, the company said.

At least 100 colleges have banned the use of the Napster site because so many of their students were downloading songs that their computer networks became clogged. The appeals panel noted the growth and popularity of the service as a factor in deciding against Napster.

Historians said yesterday that the Napster case is the latest in a long line of disputes between artists and those who seek to use their creations without permission. The U.S. Constitution, one noted, describes copyright protection - "to promote the progress of science in the useful arts" - before it prescribes the establishment of military forces.

A century before Napster, the advent of the piano roll struck fear into songwriters, who worried that no one would buy their works if the public could readily listen to songs in their parlors on player pianos.


In 1984, the same court that ruled against Napster outlawed videocassette recorders as an infringement on copyright law. The U.S. Supreme Court overturned that ruling, saying that "time shifting" - recording programs on video to be viewed later - did not constitute theft of intellectual property.

Napster has tried to make a similar argument, that its electronic bulletin board matching someone who wants to find a song with someone else who has it on his computer hard drive is a form of "space shifting."

The appeals court shot down Napster's argument that the record companies didn't act sufficiently to protect their copyrights.

Since the 1988 Berne Convention Implementation Act, there is no need to register with the government to create a copyright, said Ned T. Himmelrich, an intellectual property attorney in Baltimore. In essence, anything created in a tangible form - a snapshot of a child, a home video - is copyrighted, meaning no one is permitted to use it without the creator's permission.

Also at issue for the appeals court was whether Napster had received permission to retransmit the work of major record labels for broad distribution. The court asked Patel to reword her order to make a distinction between permitted and forbidden reuse of copyrighted material.

E. Michael Harrington, a music professor who uses Napster in his classes at Belmont University in Nashville, Tenn., was among those disappointed by Monday's ruling.


"Napster is the best thing other than the Internet itself," said Harrington, who uses the site to find songs he can't find elsewhere. "I'm sad this was the decision."

He and other Napster fans decried the recording industry's suit as shortsighted, given that sales of compact discs have risen 10 percent a year since Napster began in 1999.

Some foresee another Napster-style battle when technology affords the public the means to copy movies on "DVD burners."

At home in Atlantic City, where he administers the estate of his late father, Jon Goodman laughed about history repeating itself. Shortly after his father lost the suit brought against his song "The Flying Saucer," agencies sprang up to represent artists and collect what the industry termed "mechanicals" - royalties so that works could be mechanically and lawfully copied.

"They say Napster doesn't make any money, but my dad didn't really make any money either. It was fly-by-night," he said.

Goodman hopes that what goes around may come around.


"Napster will be fine. They'll cut deals the same way Dad did," said Goodman, adding that his father's parodies can be mined on Nap- ster's Web site.

"And once it's settled," he said, "I'll be calling Napster to get my share."