Metallica’s Lawyer Asks 11 Prominent Institutions to Ban Napster Use

The lawyer for the rock band Metallica and the rap artist Dr. Dre has sent letters to 11 prominent universities asking the institutions to restrict students’ access to Napster, the popular MP3 file-sharing service.

The lawyer for the rock band Metallica and the rap artist Dr. Dre has sent letters to 11 prominent universities asking the institutions to restrict students’ access to Napster, the popular MP3 file-sharing service.

Letters went out Wednesday night to Columbia, Harvard, and Stanford Universities, and the University of Virginia. The lawyer, Howard E. King, said he was sending letters Thursday to Boston University, the Georgia Institute of Technology, the Massachusetts Institute of Technology, Princeton University, the University of Michigan at Ann Arbor, the University of California at Berkeley, and the University of California at Los Angeles.

With the letters, Mr. King sent copies of a lawsuit Metallica filed against Napster in April. Indiana University, the University of Southern California, and Yale University were named as defendants in the lawsuit, along with Napster, but the universities were dropped from the suit when they blocked student access to the file-sharing service.

The lawsuit has a provision for adding other universities as defendants, and officials at many universities have been wary of being named.

College and university administrators have been grappling since the beginning of the year with issues raised by Napster, which lets users trade digitized music files over the Internet and which has proven immensely popular. Many institutions have seen students’ obsession with the program overwhelm the capacity of campus networks. But traffic jams are only part of the problem. Many colleges and universities have been troubled by the knowledge that most Napster users are trading songs they have never paid for.

The letter addressed to Harvard’s president, which was similar to the letters sent to other universities, says in part:

    By this letter, we ask you to also promptly ban access by your community to Napster. Even without the threat of litigation from artists and other copyright owners, I believe that you can easily recognize the irony of encouraging your students to matriculate in the creative arts, while engaging in behavior which, if unchecked, will make it impossible for those students to earn an income from their future creative efforts. Put simply, we believe that Harvard has a moral, ethical and legal obligation to take appropriate steps to assure that it is not a willing participant in and an enabler of the theft of intellectual property through Napster.
    The letter concludes by asking the universities to respond by September 22.

Mr. King said in an interview Thursday that the underlying message of the letter was not that the institutions would be sued if they didn’t block Napster.

“I really tried to couch the letter in terms of, Engage in the discussion and do the responsible thing, which we believe will result in them electing, without the threat of litigation, to ban Napster,” Mr. King said.

And if they don’t? “We’ll just have to wait and see.”

Noting that the 11 universities are among the best in the world, he added: “They ought to seriously address this issue of intellectual property. They certainly aren’t allowing students to copy books in the university library.”

Mr. King said he culled the names of the universities on his mailing list from media reports. He said he would also send letters to universities named in a recent Gartner Group report that listed institutions that have allowed Napster to be used on campus.

In addition to the universities that have already received letters, the report listed Duke University, Iowa State University, Texas A&M University, the University of Wisconsin at Madison, the University of Pennsylvania, and Wellesley College, among others.

The courts have yet to make clear whether a university can be successfully sued for not preventing specific online behaviors by students for whom the university provides network access. Some observers say no one would think of suing a telephone company because its customers use Napster in ways that violate copyright law.

At the same time, however, university administrators do not appear eager to devote time and money to fighting legal battles that are largely unrelated to their educational missions — especially not battles that would put them in the awkward position of defending students who were violating musicians’ intellectual-property rights.

“The whole issue raises some interesting and intriguing questions,” said Joe Wrinn, director of news and public affairs for Harvard. “We are looking at this — not because a lawyer for Metallica has contacted us, but because the issue seems to approach a fine line that raises some intriguing questions.”

“I don’t even know what the university’s reaction is going be,” said Robert F. German Jr., director of policy and strategic planning for the office of information technology at the University of Virginia. “We haven’t had to confront the issue in this way, so I don’t want to predict how it’s going to come out.”

Virginia has tried to educate students about the copyright issues surrounding Napster rather than block the program, a tactic that many campus administrators say clashes with the freedom-of-inquiry ethos of a university environment. They also say they doubt blocking it will work anyway in the long run. “My biggest personal concern is whether [blocks] will be effective for the goal that they are trying to accomplish,” Mr. German said.


A LETTER TO HARVARD UNIVERSITY FROM HOWARD E. KING, REPRESENTING METALLICA AND DR. DRE

September 6, 2000

VIA FEDERAL EXPRESS

Harvard University
Massachusetts Hall
Cambridge, MA 02138
Attn: Neil L. Rudenstine, President

Re: Napster

Dear Mr. Rudenstine:

We are attorneys for two prominent recording artists, Metallica and Dr. Dre, both of whom have spearheaded efforts by the creative community to stop the rampant copyright infringements encouraged and implemented by Internet site Napster. Much of our clients’ efforts have been directed at universities, most of whom have experienced massive usage of Napster by their students, and many of whom have engaged in a public discussion over whether or not Napster should be made available to students through university-owned or controlled networks.

Napster, as you most certainly know by now, is a service which includes a directory of millions of MP3 files, primarily consisting of copyrighted compositions and sound recordings. Napster enables the transfer of those musical works between users, without the consent of or payment to the lawful copyright owners. It is now estimated that more than 20 million users regularly commit copyright infringements through Napster by downloading or uploading copyrighted material, without consent of owners. Although Napster euphemistically refers to this activity as “file sharing,” there is little doubt that this “sharing” is piracy on a massive scale.

As a result of Napster’s activities, the major record labels have filed suit against Napster in the United States District Court for the Northern District of California. That Court has issued a preliminary injunction against Napster, a copy of which is enclosed. As you can see, the comprehensive opinion of Judge Marilyn Patel explains the mechanics of the on-going copyright scheme perpetuated by Napster and its users, and declares same to be unlawful. As you may also be aware, the 9th Circuit Court of Appeals has stayed enforcement of this injunction pending an appeal to be heard in October.

In April of this year, Metallica and Dr. Dre filed their own lawsuits against Napster in the United States District Court for the Central District of California. A copy of Metallica’s complaint is enclosed. In addition to naming Napster as a defendant, Metallica named three universities as defendants, University of Southern California, Yale University, and Indiana University, along with other universities to be named later, claiming that these university defendants should be held liable for copyright infringement for their knowing facilitation of the massive copyright infringements occurring through Napster. Shortly after suit was filed, USC, Yale and Indiana University all decided to restrict access by their students to Napster. Although these decisions were made after litigation had been filed, it is clear to us that all three of these universities were already engaging in an ethical discussion over whether or not they should be taking action to prevent copyright infringements through their system and, absent the litigation, still would have concluded that access to Napster through their system should be restricted.

By this letter, we ask you to also promptly ban access by your community to Napster. Even without the threat of litigation from artists and other copyright owners, I believe that you can easily recognize the irony of encouraging your students to matriculate in the creative arts, while engaging in behavior which, if unchecked, will make it impossible for those students to earn an income from their future creative efforts. Put simply, we believe that Harvard has a moral, ethical and legal obligation to take appropriate steps to assure that it is not a willing participant in and an enabler of the theft of intellectual property through Napster.

Metallica and Dr. Dre would like to know your position and instructions with respect to access to Napster through your network. Please provide us with same by September 22, 2000.

Very truly yours,

Howard E. King
of King, Purtich, Holmes, Paterno & Berliner, LLP

HEK:dw
Enclosures
cc: Metallica
Dr. Dre
Harvard University Gazette (w/ encl.)

Author: SCOTT CARLSON

News Service: chronicle.com

URL: http://chronicle.com/free/2000/09/2000090801t.htm

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.