Napster First Amendment Right Term paper

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Napster: To Be or Not To Be

Napster (http://www.Napster.com) is a company that operates exclusively online as a virtual music forum. Napster not only allows its visitors the ability to participate in ongoing discussions through its message board forums and online virtual chat rooms, but it also allows its visitors the capability to exchange music files (MP3s) with other Internet users. Because Napster is a "virtual" online public forum, Napster should be protected under the First Amendment. Under the First Amendment, "we the people," are protected by these rights of freedom of speech and assembly. The idea of people coming together in one specific area of the Internet and being able to talk about music is essentially a right of all Americans. We have the right to "freedom of assembly" and the right to "freedom of speech." This is why Napster should not be shut down. Napster should be protected under the First Amendment.

Wait!!!! What is a Napster? Shawn Fanning was a nineteen-year-old college student at Northeast University, when he first introduced his program Napster. Fanning had two loves: one was sports and the other was computers. As his curiosity grew for computers, he decided to stop playing sports. He then concentrated most of his time working with computers. He primarily focused on two aspects of the computer, programming and the Internet. During his freshman year at Northeast University, in 1998, Fanning was trying to enter computer science classes higher than the entry level (Jones, 2001, 1A). Not finding anything challenging about the courses he was enrolled in, Fanning decided to start writing a Windows based program in his spare time. He spent most of his time in chat rooms with experienced programmers who knew the “tricks of the trade,” so to speak, of computer networking. Shawn’s roommate loved music files, most commonly known as MP3’s, but disliked most music sites that had limited music files available. He also disliked the idea of having to search endlessly from Website to Website for songs. Fanning, having this in mind, and his programming skills at hand, he wrote a program that he entitled Napster. He used the idea of all users being connected to one central computer server, and having access to each other’s music files that users wished to share (“MTV News,” 2000, 1). Spoken in a more technical manner “Napster makes its application software freely available for download by consumers from its website. This software allows users to connect their PCs to and participate in the Napster peer-to-peer file indexing system. Users are not required to share any files with others, either as a condition of using the Napster system or in order to obtain files from other users” (Reuters, 1999). In short, Napster is a facilitator that allows its users to trade music files. It was created by Fanning because other music-trading sites were in his view, unreliable.

The idea of program sharing MP3s and giving people the ability to make customized compilation CDs (also known as burning a CD) of their favorite artists songs may sound brilliant to the users of Napster, but to the musicians whom creatively write the music, this is in their view, is a form of stealing. They have not only spent hours producing and writing music, but music is something that is published and copy-written. The Recording Industry Association of America (RIAA) is currently representing the band Metallica, rapper Dr. Dre, and five other major record labels, which are all plaintiffs in a copyright infringement and piracy lawsuit against Napster (Reuters, 1999). When the Napster software is downloaded on a computer hard drive, Napter serves as an online music community, where you can conduct a search of the other users songs (MP3 files) that are currently online. According to Fanning, “There are consistently eight hundred thousand people using the Napster service, limited only by their resources” (“MTV News,” 2001, 1). This statement is the exact argument that the RIAA is using to sue Napster. On May 8, 2000, the RIAA sued Napster for copyright infringement (Heilemann, 2000, 1-2). In their opinion they feel that there are over eight hundred thousand people stealing music at any given time. The RIAA believes that Napster and its founders are promoting the illegal reproduction of copyrighted music, and not giving any royalties to the owners of the songs (Reuters, 1999). Their theory behind the lawsuit is that there is no reason for a lover of music to go out and buy a compact disc that they like, why would a person want to buy a CD, when they could get it for free? They belief that Napster should be shut down until it compensates the artists for lost revenues for copyrighted music that was “stolen.” “There is not a First Amendment right to take someone else’s copyrighted expression and duplicate it” (Freedom Forum Staff, 2000,1).

On the flip side, Napster believes that shutting their company down is in violation of “1008 of the Audio Home Recording Act (AHRA), which immunizes all noncommercial consumer copying of music in digital or analog form” (Reuters, 1999). This basically means that since Napster is not profiting off of the music, and the sharing of music is intended for the soul purpose of the “noncommercial consumer” usage, therefore, it is protected by the AHRA. According to Napster’s newsletters, “as a condition to your account with Napster, you agree that you will not use the Napster service to infringe the intellectual property rights of others in any way” (Earp, 2001, 1). Napster believes that they are just the facilitators in an online exchange forum. Napster is the program that links computers together, not the program that “steals music.” They contest that they have done nothing...

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