>>Ok, by that standard, all MP3s from Napster are perfectly ok. You _do_ know how Napster works, don't you?
>
>I think that should be "You can copy any copy righted material THAT YOU OWN for your own use". Like your Vinyl and Tape example, perfectly legal. So, when you file share those copies, its not for your own use, which makes EVERYTHING on Napster thats copyrighted illegally there, right?
>
>I'm not a lawyer, just taking a stab at it.

I'm not a lawyer, either, and I'm taking a stab, too.

I think the argument with Napster is that *both* statements can be considered correct. Since the copyright law allows fair use, then you can make your own copy. Therefore, you can say that all MP3s that you download from Napster are OK. However, there are lots of people making their CDs available through Napster, and therefore making it available NOT for their own use, which makes everything there illegal.

Here's the fair use clause from the US Copyright Code:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

You could possibly argue that downloading a work to learn it, then play it in public does not negatively affect the value of the copyrighted work, especially since you have destroyed the copy. Of course, playing it for a paying audience would put it into the commercial realm...but does it affect the potential market for or value of the song? You could argue that perhaps it increases it. I'm not certain I'd want to find myself in court paying lawyers to defend that, but it sounds like it *could* work.

However, it seems pretty clear to me that the vast majority of the stuff made available to, and taken from, Napster does NOT fit the fair use provision, as the net effect is to get it for free, that is, to diminish the potential market for the heavily marketed songs.

Of course, the guy who's trying to make it into the market feels differently--Napster could be his only outlet. If that guy wants to put his MP3s out there, if he is the copyright owner, he can do with it whatever he wants.

I'm not a lawyer (nor do I want to be), and I don't have the definitive answer. But I do think that Napster is a vehicle to enable copyright infringement on a grand scale--that's bad. At the same time, it's also a vehicle to get the unknown, little-known, or alternative artists a chance--that's good. I don't know of a way to prevent the first part without eliminating the second part. The only thing I can think of is a total architecture change--it becomes a single d/l site, where only the copyright holder can enter their works. Then everybody wins. The copyright holders are happy, and nobody can unwittingly break the copyright law. However, it sounds like a nightmare to manage the copyrights.

While the legal beagles sort this out, I'll just use my own judgement as to whether downloading MP3s is legal, and I'll let others use their brains, too.

- della