Hatch Comes to Napster's Defense

While nearly every Napster (dossier) pundit who's ever met a microphone received quality air time following Monday's appeals court ruling, one critical voice was absent: Sen. Orrin Hatch, R-Utah. Hatch has publicly championed Napster and admonished the major record labels for being no-shows at the digital-music revolution.

But Wednesday on the Senate floor, Hatch said he was troubled by the potential fallout of the court's decision against Napster and called for the Senate Judiciary Committee to hold a third round of hearings on the online music marketplace. Using his bully pulpit, he again threatened the record industry with legislation if Napster is forced to close in the face of the record companies' law suit and a lower court's modified injunction.

"I would expect that my colleagues, like me, will be contacted by the over 50 million Napster fans who oppose the injunction and fear the demise of Napster," Hatch said. "This may prompt a legislative response."

His said his main concern was for the legion of Napsterians who would be denied access to digital music if the service doesn't resolve its differences with the record labels. "The Napster community represents a huge consumer demand for the kind of online music services Napster, rightly or wrongly, has offered and, to date, the major record labels have been unable to satisfy," Hatch said. "Some have suggested that the labels merely wished to establish a legal precedent and then would be willing to work on negotiating licenses. Well, it seems to me that now might be a good time to get those deals done, for the good of music fans, and for the good of the copyright industries and the artists they represent."

Hatch called Napster "the most popular application in the history of the Internet" and urged labels, technologists and artists to find a market solution. He used the deal Napster reached with media giant Bertelsmann (dossier) as an exemplar he would like to see repeated. "I was pleased when Bertelsmann took the initiative in harnessing the consumer demand evidenced by Napster and decided to work cooperatively together to develop a service that would benefit both of them and those they seek to serve — the artists and music fans."

Yet Hatch did note that the current version of Napster might violate copyright laws. "There is something in our legal system called copyright, and the principle underlying copyright is a sound one," he said. "I believe that artists must be compensated for their creativity. And I believe that Napster as it currently operates, threatens this principle." In an overture to the music industry, he conceded that if he were in the position of the labels, he well might have pursued similar litigation.

Hatch wasn't willing to offer specifics on any potential legislation. In fact, he said that he was concerned that some solutions, which he declined to specify, could be worse than the problem. "Some of these responses could strike the important intellectual property rights of artists and copyright owners online entirely, undoing the carefully balanced development I have tried to foster over the years, and possibly harming consumers as well as creators in the long run."

Other Washington insiders agree with Hatch that Congress needs to proceed gingerly, if at all. At a panel discussion Monday, Virginia Rep. Bob Goodlatte, vice chairman of the House Judiciary subcommittee on the courts and a leading Republican on Internet issues, said the technology is moving too quickly for legislators to react in time. Anticipating changes in the Internet marketplace is like "trying to hit a very fast-moving target," Goodlatte said.

In any event, the battle lines are being drawn in Washington just in case Congress' interest gets piqued. Napster has hired former Senate Judiciary chief counsel and Hatch aide Manus Cooney to head its D.C. office, while Bertelsmann recently signed up Joel Klein, the former head of the Justice Department's antitrust division.