Legal experts explain potential troubles for Napster fans

This week, hard-rock band Metallica identified hundreds of thousands of Napster screen names belonging to potential music pirates. The hard-rock band and rapper Dr. Dre have filed separate lawsuits threatening to name specific university students who they allege have illegally downloaded their music.

Napster also is being sued by the Recording Industry Association of America for contributing to vast amounts of music piracy allegedly taking place with the aid of its software.

The legal action against individuals raises a new flag in the battle over MP3s. Is it possible for people who use Napster or similar music-swapping software to get caught and be held liable for damages that could run close to thousands of dollars?

CNET News.com asked attorneys Judy Jennison and Kurt Opsahl at law firm Perkins & Coie for a road map to copyright infringement, Napster and you.

CNET News.com: Could a court hold me liable if I copy one song off Napster? How about 100 or 1,000 songs? What is my potential exposure in each case?
Perkins & Coie: The Audio Home Recording Act (AHRA) allows for the use of digital audio recording devices for personal, noncommercial recording of copyrighted music--without liability. However, it is unclear if a computer would qualify for the exception, since at least one court has held that a computer is not a "digital audio recording device."

That same case found that the main purpose of the AHRA was to permit home recording and noted that copying a song from a computer to the Rio MP3 player was paradigmatic fair use. If a court found that the exception did not apply, you may have fair use defense for copying, but the ability to raise that defense would diminish with a larger number of copied songs.

If you were ultimately found liable, the Copyright Act provides for significant monetary damages--up to $150,000 per work infringed, if the infringement is willful.

Beyond the letter of the law, is there a practical threshold of activity that divides safe copying from actionable piracy?
The copyright owner decides what level of activity warrants legal action. The more widespread the problem, the more likely a copyright owner would take action against low-level piracy. In addition, the greater the copying, the less likely a court would find that it is a "fair use."

Is it worse from a legal standpoint to make illegal copies for myself or to help others get them?
Copyright law imposes liability for contributory and vicarious infringement. Thus, if you help another infringe with knowledge that they are infringing, or if you profit from the infringement, you may be liable.

Can I be held liable if people make illegal copies of files on my computer through a program like Napster?
To the extent that the AHRA allows other people to make copies, you would have a strong defense against liability. If the AHRA does not apply, you might argue that you are not liable because (1) the passive act of permitting sharing does not rise to the level of contributory or vicarious infringement, or (2) there is no underlying infringement because the other people were engaged in fair use. Whether these defenses would succeed is currently unclear.

If I download unauthorized works and later delete them from my hard drive, can I still be held liable for infringement?
The copying is the act of infringement, so even if the works are later deleted, you could still be liable for copyright infringement. If you are arguing that your use is a "fair use" (e.g., "I only made a copy to write a review of one song") your argument might be strengthened somewhat if the work was promptly deleted after the "fair use."

Does a copyright holder have to provide any warning before seeking damages for infringement in court?
No. The only pre-suit requirement is that the work be registered with the Copyright Office. (It is likely that many, if not most, commercial sound recordings are already registered.) Nevertheless, copyright owners often will send a "cease and desist" letter before suing. It is more cost-effective if the purpose is to stop ongoing infringement, and it allows the copyright holder to allege willful infringement if you disregard the warning.

Can I be singled out for legal action even if I'm just one person among many using the software?
Yes. There is no legal argument that would provide a defense on the basis that other people are also infringing but are not being sued. However, as a practical matter, the odds are in your favor.

Are different file-sharing technologies (IRC, FTP, Napster) treated differently for copyright purposes?
The unauthorized copying or distribution of copyrighted works is an infringement regardless of which technology is used (unless the technology is a "digital audio recording device" under the AHRA).

Note: Jennison and Opsahl warn that anyone seeking legal advice should contact an attorney, and that answers dealing with any specific case could change with the facts of that case.

News.com's John Borland contributed to this report.