By William Fisher and Christopher Yang.
Last Updated May 30, 2002
Table of Contents
Introduction
Case Studies
Readings
Discussion Topics
Additional Resources
Introduction
Most Internet content today is "served" from a central system
that takes requests from a user's "client." Typically,
the user asks for access to information or other data; the
requested content is then "pushed" from the central system
to the user. In this model, the various visitors to
a given web site do not interact. By contrast, peer-to-peer
technology (commonly known as "P2P") creates conversations
among individual personal computers (PCs). In this respect,
P2P systems resemble an affiliate network where information
(rather than referrals) is passed along many people.
P2P interactions are often initiated when one computer asks
several other individual personal computers whether they have
a specified file or type of information. Each computer
to which the search request is sent either responds or, more
commonly, forwards the request on to a second tier of computers,
each of which may pass the request onto a third tier, and
so forth. As the request "cascades," content across
a wide network of machines is searched. When a "match"
is made, the sought-after file is transmitted directly to
the original requester.
Most applications of P2P technology are wholly benign.
Problems arise, however, when the material flowing through
networks of this sort is copyrighted and is being reproduced
without the permission of the copyright owners. For
two reasons, nonpermissive P2P file-sharing of copyrighted
materials is extremely difficult to police. First, the
structure of P2P systems makes it hard for either copyright
owners or government officials to track the movement of copyrighted
materials as they pass from user to user. Second, because
P2P systems usually do not employ centralized transmission
nodes or distribution points, they are very difficult to shut down.
While both the digitization of information and the concept
of file sharing have existed for many years, the advent of
the Internet has made P2P copying possible on a scale never
before imaginable. The industry that, thus far, has
been affected most dramatically and visibly by the new technology
is the music industry. The main reason why the action
in this field has been especially intense is that musical
files -- especially when compressed using the popular
MP3
format -- occupy relatively little space and thus are easily
transmitted through P2P networks. That circumstance
underlay the enormous popularity of
Napster
, a modified P2P system, and
Gnutella
(a “purer” example of the P2P model without an intervening
server). Using these systems, it is possible for individuals
to create libraries of their favorite songs by downloading
free copies of them from the Internet. Alternatively,
individuals can "rip" MP3 files from their own CDs using inexpensive
or, in many cases, free
software
designed exclusively for that purpose. Users can then
play-back these files in a variety of ways. They can
listen to them on a variety of
portable MP3 devices
or directly from their hard drives, they can send their files
via email to other music fans, or they can upload their files
to the Internet for anyone to enjoy. And because the
music is in digital form, each successive copy sounds as good as
the original. The net result has been a radical and rapid
shift in the way music is distributed and consumed. But
music is only the first industry to feel the force of this
technological revolution. As the bandwidth available
to ordinary computer users grows, as file-compression technologies
for other types of media proliferate, and as the size of hard
drives increases, all other entertainment industries will
likely be transformed in similar ways.
This module examines the legal and policy implications of
P2P technology. Is it beneficial or pernicious?
Is it legal or illegal? Which, if any, of the participants
in the new networks should be liable to the owners of the
copyrights in material that is transmitted and reproduced
without permission?
It is crucial that, before beginning the module, you have
at least a rough understanding of the relevant technology
and the principal doctrines of copyright law. If you
feel uncomfortable in either dimension, you should consult
the attached primers on
digital music
and the
basics of copyright
. You should then peruse the
case studies
, which focus on the legal battle over Napster and the legal
status of alternatives to Napster. Next, we suggest
that you examine the
Readings
associated with the module, following as many of the associated
links as you find interesting. At that point, you should
be well prepared to consider -- either on your own or, better
yet, in one of our electronic fora -- the
Discussion Topics
. The module concludes with a substantial body of
Optional Related Material
.
Back to Top
| Intro |
Case Studies
|
Readings
|
Discussion Topics
|
Additional Resources
Case
Study 1: Napster
The Internet-related controversy that generated the most
heat and light during the past two years was the titanic struggle
between the
Recording Industry Association of America
(RIAA) and Napster.com
. Napster is not a traditional search engine, but a
protocol that
enables individual computer users to share information concerning
the contents of their hard drives
. Specifically, it enables a user interested in obtaining
an MP3 copy of a particular song to search the drives of other
Napster participants for the song in question -- and then,
after locating a copy, to download it to his or her own drive.
The service proved extraordinarily popular, espcially (but
by no means exclusively) among college students. During
the period of maximum usage of the system (winter 2001), a high
percentage of the
traffic on many university networks
consisted of Napster searches and downloads.
Aware that its system facilitated the nonpermissive reproduction
of copyrighted material, Napster employed various tactics
to minimize its exposure to liability: it
neither stored nor cached
any digital music (infringing or otherwise) on its servers;
it trumpeted a "
Copyright Policy
" in which it disclaimed responsibility for the activities
of its subscribers and insisted that they promise not to violate
the law; and it promised to "respond expeditiously to claims
of copyright infringement committed using [its] service."
Unimpressed,
the RIAA filed suit
, accusing Napster of both contributory and vicarious copyright
infringement.
In its defense, Napster made three legal arguments. First,
it invoked the protection of sections
512(a) and 512(d)
of the Digital Millennium Copyright Act (DMCA), which provides
to the operators of "transitory digital network connections"
and "Information Location Tools" "safe harbors" against liability
for copyright infringement. Second, Napster argued that peer-to-peer
copying of digital files using its system constitutes ""the
noncommercial use by a consumer" of "a digital audio
recording device," which, pursuant to
section 1008 of the Audio Home Recording Act
, cannot constitute copyright infringement. Because its members
are not engaged in copyright infringement, Napster argued,
it plainly could not be liable for contributory copyright
infringement. Finally, Napster insisted that
a significant percentage of the uses of its system
involves lawful copying of musical files -- either because
the owners of the copyrights in the songs in question do not
object to (indeed, encourage) the duplication of their works
or because the character of the copying is such as to make
it a "fair use." Consequently, Napster argued, its system
is manifestly "capable of substantial noninfringing uses,"
and thus is immunized against liability for contributory copyright
infringement by the decision of the United States Supreme Court
in the
Sony
case.
At the trial-court level, Napter's arguments fared badly.
In April of 2000,
Judge Marilyn Patel rejected Napster's invocation of DMCA
512(a)
. On August 10, 2000,
Judge Patel rejected all of Napster's remaining arguments
and
granted a preliminary injunction against the continued operation
of the system
. The Court of Appeals for the Ninth Circuit was somewhat
less hostile. One day after Judge Patel's second ruling, the Court
of Appeals stayed the imposition of the injunction pending an appeal.
Oral argument on the appeal was heard on October 2, 2000.
The tenor of the questions asked by the three-judge panel
suggested that they were more receptive than Judge Patel to
Napster's position.
On February 12, 2001, the Court of Appeals handed down its
much anticipated ruling. The three-judge panel
declared that Napster must stop trading in copyrighted material
and may be held liable for vicarious copyright infringement.
The company was allowed to stay in business until Judge Patel
modified her injunction, which the appellate court labeled
"overly broad."
During the next several months, a complex set of maneuvers
erratically but seemingly inexorably tightened the noose on
Napster. In March, Napster agreed
voluntarily to halt illegal song trades
by implementing a filtering system designed to catch copyrighted
materials. In response, Judge Patel opted not to shut
down the service and ordered the record labels to assist Napster
in identifying individual infringing file names, as well as
song titles and artist names to be blocked. Within a
week of setting up its filters, the
average number of MP3 files shared by Napster users fell close
to 60%
according to analysts at Webnoize. By early April,
this number had stabilized to 36% and Napster had blocked
311,000 individual songs, as well as 142,000 various misspellings
of those song names or artist names. But in a hearing on April
10, 2001, Judge Patel described Napster's filtering efforts
as "disgraceful." Patel suggested that "maybe the system
needs to be closed down" if it was unable to catch all copyrighted
material. Nevertheless, Judge Patel failed to take any
further action against Napster and instead opted to await
testimony from the
newly appointed court mediator, A.J. "Nick" Nichols
, who also served as the court expert in Sun Microsystems'
suit against Microsoft. In late April, Judge Patel issued
a memorandum requiring the record labels to identify
at least one infringing file on the ever-changing network
before Napster is obligated to block copies of the song.
In July, Napster voluntarily shut down its system entirely in order
to retool it. The record companies argued that Napster
should not be permitted to resume operations until it could
guarantee "100% compliance" with Patel's prohibition against
infringing activities. Judge Patel agreed, announcing
a "zero-tolerance" policy regarding the transmission of infringing
files. In March 2002
the Court of Appeals affirmed
her order. Meanwhile, in September 2001, Napster settled
a secondary lawsuit against it by the National Music Publishers
Association (which represents the owners of copyright in musical
compositions, not to be confused with copyrights in sound
recordings) for $26 million.
Almost all of the ligitation up to this point had involved
struggles over the issuance of a preliminary injunction.
In August 2001, the record companies sought to move the case
forward, requesting Judge Patel to grant them summary judgment
in their substantive case against Napster. In response,
Napster argued that three independent circumstances made summary
judgment inappropriate: (1) the record companies had
not adequately identified and proved their ownership of thousands
of songs that they claim were unlawfully transmitted over
the Napster system; (2) that Napster should be afforded an
opportunity to show their entitlement to one or more of the
"safe-harbor" provisions in the Digital Millennium Copyright
Act; and (3) that the record companies have themselves engaged in
various forms of illegal behavior -- most importantly, price-fixing
and other kinds of anti-competitive conduct vis-a-vis music
on the Internet. Judge Patel showed little interest
in the first two of Napster's arguments. She took considerable
interest, however, in the third. This was a potentially
explosive development in the case. A finding that the
record companies have engaged in anti-competitive behavior
could have benefitted Napster in several ways. At a
minimum, it could have reduced the damages that the company
must pay (on the ground that the profits that the record companies
claim to have lost were based upon monopolistic pricing).
More radically, such a finding could have supported a judgment that
the record companies have engaged in "copyright misuse," which
could prevent them from recovering at all. Finally,
the record companies could have been held liable to Napster
for damages based upon a violation of the antitrust laws.
A ruling by Patel that Napster could pursue discovery of the
music companies' documents relevant to this issue raised the
stakes even further.
Meanwhile, the Napster executives sought to remake the company
in two ways. First, they participated in a consortium of companies
that recently began offering music over the Internet under the trademark
"MusicNet ." Second,
they developed plans for resuming operations on a subscription basis.
Money collected from subscribers would, they hoped, enable them
to obtain licenses from the record companies to use their sound
recordings legitimately. In the end, however, these various
efforts to sustain the company as an independent enterprise came
to nought. In May of 2002, Bertlesmann
, the music company that had previously propped up Napster's shaky
finances, saved the company from bankruptcy by buying the remainder
of it for $8 million.
Professional and popular reaction to the litigation and
to the (pen)ultimate decision of the Court of Appeals has
varied widely. Some members of the music industry clearly
sympathize with the RIAA. According to Ron Stone of
Gold Mountain Management, which represents such artists as
Bonnie Raitt and Tracy Chapman, "[i]t is the single most insidious
website I've ever seen… its like a burglar’s tool."
Prominent individual artists and groups are speaking out as well.
One of the most outspoken critics of Napster is the heavy
metal rock group Metallica, which sued Napster in U.S. District
Court in Los Angeles for copyright infringement and racketeering
in April 2000. In a surprising move, the band delivered
to Napster 13 boxes containing 60,000 pages of documents
identifying usernames of people who allegedly made Metallica
songs available online and demanded that Napster "boot" them
from the service.
Napster complied
, blocking 317,377 user names from its service in early May
of 2000.
In his
interview with Slashdot,
Metallica drummer Lars Ulrich stated, "I don't want to sound
too combative here, but you know, when somebody f---s with
what we do, we go after them." In his
testimony to Congress
, Lars commented that "if you're not fortunate enough to own
a computer, there's only one way to assemble a music collection
the equivalent of a Napster user's: theft." Likewise, Sean
"Puffy" Combs, CEO of Bad Boy Entertainment, Inc. was horrified
at the infringement activities he alleges to have discovered
transpiring over the Napster site:
I couldn't believe it when I found out that this
Napster was linking thousands of people to the new Notorious
BIG album "Born Again," a week before it even hit the streets.
This album is a labor of love from Notorious BIG's friends
to the man, his kids, the rest of his family and everyone
else whose lives will never be the same since BIG passed.
BIG and every other artist Napster abuses deserve respect
for what they give us.
However, not all artists are opposed to Napster. Notable
supporters include Rap singer Chuck D and modern rock bands
Smashing Pumpkins, Limp Bizkit, the Rosenbergs, and Ben Folds
Five. Billy Joe Armstrong of Green Day says, "I just want
my music to be out, and that's always been the main priority."
From the beginning, some industry observers suggested
that, even if the RIAA ultimately prevailed in its lawsuit,
it would gain little. Napster lawyer David Boies was
quoted in a 60 Minutes II interview as stating, "This is a
case that the record industry can't win. If they shut
down Napster today in the United States, it pops up in a different
country totally outside their control." (Whether Boies
was right will be considered in the next section.)
In April of 2001, the five major recording labels launched
two competing initiatives to tap into the subscription model
for downloadable music. In one corner, RealNetworks
became the technology partner for
MusicNet
(backed by AOL Time Warner, Bertelsmann and EMI Group).
The remaining two labels, Universal Music Group and Sony Music
Entertainment, opted to partner with
Yahoo!
to launch Duet. Both services took some time to get
off the ground, but in the past few months seem to have acquired
significant groups of subscribers. How they will ultimately
fare in the battle for the loyalty of online music consumers
remains to be seen.
For more information on the RIAA v. Napster suit,
please check out the additional resources
section
.
Case Study 2:
The Next Generation
The demise of Napster has contributed
to the development and populaization of second-generation
P2P systems. The first and best known of these is Gnutella,
a program developed by Justin Frankel at Nullsoft (AOL's development
house that is credited with creating the MP3 player WinAmp.)
The name, "Gnutella," is partly a tribute to the Free Software
Foundation’s "GNU" project and partly a play on "
Nutella
," Europe's popular chocolate-hazelnut spread. Executives
at AOL shut down the original Gnutella service one day after
a limited beta was released, denouncing it as an "unauthorized
freelance project." (Some observers pointed to AOL's
announced merger with Time-Warner as the driving force behind
this decision. CNN describes Time-Warner as having been
"one of the loudest critics of Napster and MP3 piracy as a
whole.") Soon afterwards, however, the project was adopted
by bands of open-source programmers, and a variety of unofficial
sites across the Internet began offering the program for download.
(For more information about Gnutella, please visit
the additional resources section
.) The original Gnutella program
was far less user-friendly than Napster and suffered from
scalability
limitations.
Recently, however, several new services --
BearShare,
LimeWire,
and others -- have begun offering to consumers improved versions
of the program, as well as convenient ways to obtain them.
Other, similar programs include
Mad
ster,
which "piggybacks" on AOL's popular instant messenger (estimated
to have over 21 million users by
Media Metrix
in November 2000), and Audiogalaxy
, which offers the highly popular "Satellite" software.
The most sophisticated of the second-generation P2P systems
is FastTrack
, developed by a Dutch company. Fastrack is currently
used by the most rapidly growing new services,
Grokster
(based in Nevis, West Indies),
Music City Networks
(offering the widely hailed "Morpheus" software), and
KaZaA
.
All of these new systems differ from Napster in two respects.
First, they permit exchanges of many types of material other
than MP3 files: photographs, movies, books, etc.
Consequently, they can argue more plausibly than could Napster
that their systems are susceptible of significant noninfringing
uses (a fact whose signficance will become apparent soon).
Second, unlike Napster, they have no central servers that
keep track of the files that users are transmitting.
Consequently, they can argue more plausibly than could Napster
that they are unaware of and cannot control infringing activities
by their users.
The increase in the usage of these systems over the past
few months has been extraordinary, particularly in the United
States. Peer-to-peer copying of music in Europe remains
significantly less common that it was during the heydey of
Napster. In the U.S., by contrast, the total number
of songs copied per month now exceeds the number copied during
February 2001, the time of maximum Napster traffic.
Fearing erosion of their markets, the record companies have initiated
lawsuits against several of the new companies. A threat to
commence litigation against Aimster prompted Aimster to file a declaratory
judgment action of its own, seeking to establish the legality of
its business practices. Most recently, the RIAA, joined by
the Motion Picture Association of American and several individual
movie studios, have brought suit against the developer and various
corporate users of FastTrack, claiming that, by assisting consumers
in copying vast numbers of songs and movies, the defendants have
engaged in both contributory and vicarious copyright infringement.
It will be several months before any of these suits reach judgment.
The latest development on that front seems to be indications by
recent fillings in the proceedings that the
defendants' case is "collapsing" due to financial attrition
(RIAA, however, argues that defendants are simply trying to evade
the lawsuit by switching corporate entities). Audiogalaxy - has
become the latest target in RIAA's litigation campaign. On May 24th,
RIAA Filed
a Napster-like lawsuit against Audigalaxy in a federal court
in New York claiming that the two cases are identical. Finally,
interesting developments have taken place outside the United-States.
Late on March, in a surprise decision, the Amsterdam court of appeal
in the Netherlands overturned a lower court ruling that had held
file-trading company Kazaa liable for contributory copyright infringement.
The court ruled that Kazaa is not liable for the illegal actions
of people using its software, saying that "the KaZaA application
does not depend on any intervention by KaZaA" and that "it is not
possible for KaZaA (or any other software) to incorporate a blockage
against the unlawful exchange of files". That decision- which still
can be appealed- was the first anywhere to protect a file-swapping
company against copyright liability (
unofficial translation of the decision available here ).In the
meantime, Internet-based P2P traffic continues to grow. Even
more worrisome to the record companies is that millions of copies
of the file-sharing programs have already been distributed.
Even if the RIAA prevails in all of the pending or planned suits,
it will be unable to recall those copies and thus will have great
difficulty stopping P2P exchanges.
Back to Top
| Intro
| Case Studies | Readings
| Discussion Topics
| Additional Resources
Readings
The statutes and judicial decisions relevant to copyright
law on the Internet are numerous and complex. In this
section, we will deal primarily with the statutory law that
is most relevant to the distribution of online music (and
other digital media). This module assumes that you have
some background training in, or at least familiarity with,
the fundamental principles of copyright law. If this
is not the case, we suggest that you first explore some basic
copyright tutorials
.
Copyright Act
The Copyright Act of 1976,
17 U.S.C. §§ 101 et. seq.
, provides copyright protection both to "musical compositions"
and to "sound recordings." Thus, there will generally
be two copyrights associated with any single recorded song
that is not yet sufficiently old to have passed into the public
domain. However, even if the musical composition copyright
has fallen into the public domain, a modern recording of it
will still be copyrighted.
Under
17 U.S.C. § 201
, copyright originates
with the author of a work. This author may freely transfer
any or all of the exclusive rights that make up the copyright
grant (such as the right of reproduction and the right of
distribution). Authors of musical compositions and creators
of sound recordings often transfer their exclusive rights
to music publishers and record companies.
Composers and publishers are represented by a variety
of institutions, some of which license activities that otherwise
would violate the copyright laws -- such as the broadcast
of musical compositions by radio stations. Other institutions
engage in lobbying and anti-piracy efforts on behalf of the
artists and publishers. The
Recording Industry Association of America
(RIAA) performs a variety of such functions on behalf of
its membership, which includes the largest record labels in
the world. The RIAA routinely patrols the Internet, searching
for pirated files, and sends cease-and-desist letters to apparent
copyright violators. The RIAA also initiates lawsuits
on behalf of its membership.
One of the earliest and most influential decisions pertaining
to the digital reproduction of copyrighted materials came
from the Supreme Court in a 1984 case challenging the legality
of the video cassette recorder (VCR). In
Sony Corp. v. Universal Studios, Inc., 464 U.S. 417 (1984)
, the Supreme Court held that copying
a television program for noncommercial use within the home
did not infringe the copyright in the program. More
specifically, the Court determined that the practice of "time-shifting"
-- i.e., recording a television program for viewing once and
only once at a later time -- was permissible under the fair
use doctrine. The Court then ruled that, because one
of the major uses of VCRs is time-shifting, the manufacturers
of the machines were not liable for "contributory copyright infringement,"
even if the VCRs were sometimes used for illegal purposes.
To escape liability, the manufacturers needed only to show
that their products were "susceptible of a significant noninfringing
use," which they had done.
Audio Home Recording Act of 1992
The current struggle over peer-to-peer copying is not
the first copyright battle that has been waged on the digital
music front. In 1986, digital audio cassettes (DATs)
were first introduced, and many believed that this technology
would take the place of the traditional and ubiquitous analog
audio cassette tape. Because the new machines recorded
music in digital form, they created a new threat of large-scale
high-quality piracy. Records and cassette tapes are
subject to wear and tear, and second- or third-generation copies
created from one of these analog devices are often scratchy and
of poor quality. Digital audio tapes, by contrast, allow
for "perfect" reproduction, in which each successive copy
is identical to its predecessor. The recording industry,
consequently, lobbied against the introduction of the DAT
into the United States. (Some industry commentators
believe that the resultant delay is responsible for the failure
of the technology to gain consumer interest. Others
blame the lack of consumer enthusiasm on relatively high equipment
costs and consumer loyalty to pre-existing audio cassette
collections.)
Despite the fact that the threat of mass piracy supposedly
posed by DAT technology never materialized, the recording
industry's lobbying efforts did pay off in the form of a piece
of legislation specifically designed to appease copyright
holders' concerns. The
Audio Home Recording Act of 1992 (AHRA), 17 U.S.C. §§1001-1010
, mandates the inclusion in DAT machines of copy-control devices
that limit the ability of would-be profiteers to create serial
copies of protected works. Under
AHRA §1002(a)
, a "digital audio recording device"
must conform to a Serial Copy Management System (SCMS) designed
to prevent multiple copies being created from a single work.
A "digital audio recording device"
is defined as a device capable of rendering a "digital audio
copied recording." To trigger the statute, a copy must
be a digital reproduction of a "digital music recording" and
must be produced either directly or from a transmission.
See
AHRA
§1001
. Finally, under
AHRA §1002(c)
, it is unlawful to attempt to circumvent the SCMS.
Consumers, however, also benefited from the Act.
AHRA §1008
provides that consumers who make noncommercial copies of
musical recordings utilizing a covered device or medium shall
not be made liable under a copyright infringement theory.
The AHRA has already been interpreted once in the MP3
context -- specifically in a suit against the manufacturers
of a portable MP3 player. In that case, the RIAA brought
suit against Diamond Multimedia, a company that produces the
Rio, an MP3 playback device. The Rio is similar to a
walkman and allows an MP3 user to download sixty minutes worth
of music files from his or her hard drive and listen to the
music remotely. In
Recording Industry Association of America v. Diamond Multimedia
Systems, Inc., 180 F.3d 1072, 1074 (9th Cir. 1999)
, the Court of Appeals for the Ninth Circuit found in favor
of the defendant, ruling that the AHRA did not apply to the
Rio device, because the computer hard drive from which the
Rio records could not be considered either a digital audio
recording device or a digital music recording within the meaning
of the Act. Moreover, according to the court, because
MP3 files are not coded with generation status or other copyright
information, and because copies cannot be made of the files
downloaded to the Rio, the SCMS would serve no useful function.
SDMI
Despite its victory in court, Diamond Rio and other hardware
vendors recently have been involved in the
Secure Digital Music Initiative
(SDMI) to introduce copyright protection mechanisms to their
portable MP3 players. The SDMI is a working group composed
of over
one hundred and eighty businesses and organizations
that are trying to develop specifications for the secure
distribution of music over the Internet. The specifications
are intended to be cross-platform, so that they will be compatible
with many different hardware and software products.
SDMI has already fallen behind its initial proposed deadlines
(it had hoped to have had its specifications ready for incorporation
into merchandise by Christmas 1999), but it has selected a
watermarking scheme and guidelines for an encryption scheme
that is designed to make copyright information readable from
digital music files. This information will be readable by
SDMI-compliant portable devices that eventually will refuse to play
pirated music files encoded with the copyright protection
specifications. We will discuss technological protection
mechanisms, including SDMI, in further detail in a later module.
For more information about technical alternatives in the context
of digital music, check out
these resources
.
Digital Millennium Copyright Act (DMCA)
Where copyright protections are in place, it may be unlawful
to design a product that will circumvent that technology.
The
DMCA §1201(a)
prohibits the manufacture and distribution of certain devices
that circumvent technological protection mechanisms designed
to prevent the unauthorized access of protected materials.
Prohibitions on the unauthorized access itself will come into effect
on the second anniversary of the Act. Jonathan Band,
a lawyer in Washington D.C., has written
a helpful memo on the DMCA.
If you are interested in further details about
this protection, take a look at the
RealNetworks v. Streambox materials
-- a case that has recently been settled.
The DMCA raises additional issues for Online Service Providers
(OSPs) that maintain pirated files on their servers or that
link to pirated materials. Under the
DMCA §512(c)(1)
(and, indeed, under all but one paragraph of the section),
"the term ‘service provider’ means a provider of online services
or network access, or the operator of facilities therefor."
The DMCA §512(c)(1) exempts an OSP from liability for housing
on its servers copyright infringing material unless the OSP
has notice of infringing material and fails to move expeditiously
to remove it. Thus, unless the OSP knows that a site
hosted by one of its servers contains pirated MP3 files, it
is under no obligation to search out such infringing materials
on its servers. The OSP must, however, provide a contact
person to whom copyright holders can express concerns about
possible infringing materials. Once a copyright holder
puts the OSP on notice that the infringing materials are present,
the OSP must quickly remove them. Thus, if a group such
as the RIAA gives notice to an online provider that MP3 files
are being transmitted across its systems, it can put pressure
on the system administrator take some kind of action to curtail
the alleged piracy.
Similarly, liability under the DMCA §512(d) is limited
where an online provider is "unwittingly linking or referring
users to sites containing infringing materials."
The liability exemption for "unwittingly linking" is limited
to the circumstance where provider is unaware of the infringement.
If a search engine provides an indexed list of links to counterfeit
MP3 files, the RIAA could argue that the fact that so many
MP3 files are pirated gave notice, or at least constructive
notice, to the provider that it was linking to infringing
material. Relying on this provision, the RIAA has already
taken issue with at least one indexed MP3 search engine.
According to the RIAA:
We have communicated with Lycos about their new
MP3 search engine, and they have committed to work with us
to develop procedures to eliminate infringing sites from their
directory. They also indicated their intent to fulfill their
obligations under the newly enacted Digital Millennium Copyright
Act, which requires them to take appropriate action whenever
they become aware of an infringing musical recording.
The Lycos search engine has since been reduced to little more
than a collection of dead links, a common problem encountered
when searching for MP3 files on the Internet. However,
other sites have sprung up offering sleeker indices and claiming
to minimize the number of dead links encountered when searching
for MP3 files.
The most prominent and important aspects of the DMCA,
however, involves not its provisions pertaining to OSPs, but
its prohibitions of anti-circumvention technology. These
will be considered in detail in the next module.
Finally, there are three additional U.S. statutory sections
of which you should be aware. Please skim the summaries
of the following: the
Digital Performance Right in Sound Recordings Act of 1995
, the
No Electronic Theft Act
and the
Federal Anti-Bootleg Statute
.
International Dimensions of the Issue
For an introduction to international copyright law,
begin by reviewing Findlaw's doctrinal summary entitled "
International Copyright Protection
." Then, please review the following articles from the
Berne Convention, which provides copyright law protection
to foreign nationals in signatory states:
Berne Article 2
(defining the scope of copyright protection granted under
the treaty)
Berne Article 9
(right of reproduction)
Berne Article 13
(sound recordings)
Berne Article 14
(cinematographic rights)
For more information on the International Dimensions
of online music distribution, see the
additional resources section
.
Back to Top
| Intro
| Case Studies
| Readings | Discussion Topics
| Additional Resources
Discussion
Topics
1. RIAA v. Napster
: Suppose that the United States Supreme Court had decided
to review the decision of the Ninth Circuit Court of Appeals.
How do you think the Court would have ruled? How should
it have ruled?
2. Will the second-generation P2P systems suffer
the same fate as Napster? Should they?
3. Many of the more vocal proponents
of MP3 argue that some music pirating is justified, because
music companies are already "ripping consumers off" through
enormously high profit margins on CDs and other non-Internet
music sales. In fact, the major labels have recently
settled with the FTC
to end policies that are estimated to have added $500 million
to CD prices since 1997. Other observers disagree, suggesting
instead that music companies lose a great deal of money each
year on the unsuccessful CDs they produce, making some subsidy
derived from high profit margins on better selling items necessary
to enable the record label to continue production of more financially
risky projects ("portfolio diversification"). Who do
you believe has the more persuasive argument? Can or
should the legitimacy of music piracy be evaluated by economic
observations such as these?
4. For the past few years, many people
have been arguing that the Internet will cause "disintermediation"
(cutting out the middleman in many consumer transactions)
and therefore cause consumer prices to fall. At least
one record company executive predicts just the opposite for
the future of online music. According to an
interview
with Jeremy Silver of EMI, digital music creates reintermediation,
citing such increased cost factors as web hosting, music directories,
streaming technology, security, watermarking, and transaction
companies. Which view do you think is more persuasive?
How do you think the current spate of lawsuits are likely
to impact this "supply chain?"
5. Some observers believe that digital
media will resurrect the idea of micropayments, small charges
for online activities or purchases that accrue over time before
payment becomes due. Because individual record tracks
are often too inexpensive to purchase separately, would micropayments
make more sense? Would you support such a system?
Do you believe that the major labels would support such a
system and would their support be necessary?
6. The
WIPO Copyright Treaty of 1996
provides that it shall be illegal to attempt to circumvent
technological protection measures implemented by copyright
owners. With the jurisdictional enforcement problems
created by the Internet, is international copyright law the only
remaining method through which countries can see that copyright
laws will be effective?
7. The first-sale doctrine in copyright
law provides that once a copyright holder has sold the tangible
embodiment of his work, he or she ordinarily will not be allowed
to control its future disposition. Some critics of SDMI
argue that watermarking and encryption technologies will in
effect allow the copyright holder to prevent any future sales
or transfers of the work and will thereby frustrate the first-sale
doctrine. Should the SDMI be required to insure that
the original purchaser of a digital music file be able to
dispose of it as he sees fit, or will the market force the
price of digital music down to compensate for the reduced value
of the file to the purchaser who cannot resell or transfer it in
the future?
8. To what extent should piracy be
curbed by law and to what extent should it be curbed through
code (e.g., the implementation of technological protection
schemes)? How useful are the two enforcement mechanisms
likely to be in the context of digital media distribution?
This may become increasingly important as content owners have
recently shifted emphasis from encryption to tracking of file
sharing - raising fundamental questions about privacy and
monitoring. (Each of these issues will be reconsidered
later in the month.)
Go to the Discussion Board
Back to Top
| Intro
| Case Studies
| Readings
| Discussion Topics | Additional Resources
Additional
Resources
Index:
- Technological Alternatives
- International and Comparative
Law
- Personalities
- Related Conferences
Copyright Law
Copyright tutorials
Betsy Rosenblatt, "Copyright Basics", Spring 1998
BitLaw Primer
Cornell Copyright Primer
Federal Copyright Office Primer
Timeline: A History of Copyright in the U.S
UT System Digital Library: Crash Course in Copyright
Copyright link sites
Directory of National Copyright Administrations
Stanford
University Copyright & Fair Use site
Articles related to copyright and the Internet
Don Biederman, "Copyright Trends: With Friends Like These...,"
Fall, 1999
: Written by the vice president and general counsel
for Warner/Chappel Music, the article explores a number
of changes in copyright law which occured during the last decade
of the twentieth century
Anne K. Fujita, "The Great Internet Panic: How Digitization
is Deforming Copyright Law," 2 J. TECH. L. & POL'Y 1,
1996
Mark A. Lemley, "Dealing with Overlapping Copyrights on
the Internet:"
Article is available for download from the site
Bob Kohn, "Primer on the Law of Webcasting and Digital Music
Delivery," September, 1998:"
Article detailing the music licensing process and
the legal complexities introduced by the phenonmenon of
webcasting
Brad Templeton, "10 Big Myths about Copyright Explained:"
Music Licensing Organizations
ASCAP
: American Society of Composers, Authors and Publishers
BMI
: Broadcast Music, Inc.
Harry
Fox Agency
SESAC
Statutory Law
The Copyright Act, 17 U.S.C. §§ 101 et. seq.
Audio Home Recording Act
Full text of the Digital Millennium Copyright Act
Legislative History of the Digital Millennium Copyright
Act:
Maintained by the Home Recording Rights Coalition
(HRRC), an advocacy group organized "to protect the right
to use VCRs, audio recorders and computers for private,
non-commercial purposes"
Ronald G. Dunn, Information Industry Association
, H.R. 2281 and H.R. 2180 Hearings before House Courts
and Intellectual Property Subcommittee (Sep.16, 1997)
Mike Kirk, American Intellectual Property Association
, H.R. 2281 and H.R. 2180 Hearings before House Courts
and Intellectual Property Subcommittee (Sep.16, 1997)
Honorable Bruce Lehman
, Assistant Secretary of Commerce and Commissioner of
Patents and Trademarks, H.R. 2281 and H.R. 2180 Hearings
before House Courts and Intellectual Property Subcommittee (Sep.16,
1997)
Roy Neel, United States Telephone Association
, H.R. 2281 and H.R. 2180 Hearings before House Courts
and Intellectual Property Subcommittee (Sep.16, 1997)
Jonathan Band, "The Digital Millennium Copyright Act:"
Memorandum summarizing key points of the Act
Digital Performance Right in Sound Recordings Act of 1995,
17 U.S.C. 106(6)
and
114
No Electronic Theft Act
Federal Anti-Bootleg Statute
Miscellaneous
Home Recording Rights Coalition
Kohn
on Music Licensing
Major Cases
Sony
Sony Corp. v. Universal
Studios, Inc., 464 U.S. 417 (1984) (
summary
|
full text
)
Rio
Recording Industry Ass'n
of America v. Diamond Multimedia Systems, Inc., 180
F.3d 1072, 1074 (9th Cir. 1999) (
summary
|
full text
)
MP3.com
RIAA Complaint
: Provided by MP3.com.
"MP3.com
Files Suit Against RIAA:"
From MP3.com; MP3.com files a responsive suit against
the RIAA
"MP3.com Stores Your CDs":
Describes the MP3.com services that are now under
attack from the RIAA
Christopher Jones, "RIAA Sues MP3.com":
Provides some legal analysis of MP3.com's potential
liability
Courtney Macavinta, "RIAA Sues MP3.com, Alleges Copyright
Violations":
Estimates the damages MP3.com may owe should it be
found liable for copyright infringement
Jim Hu, "MP3.com's New Features Get Mixed Reception":
Describes MP3.com personalization services, Beam-It
and the Instant Listening Service
Napster
Napster Lawsuit Q&A:
As provided by the RIAA
Declaration of Michael Robertson, CEO and Chairman of MP3.com,
Inc.
Transcript from Napster Hearing on July 26, 2000
Judge Marilyn H. Patel's Opinion on Napster Preliminary
Injunction
Janelle Brown, "MP3 Crackdown":
Discusses the RIAA's allegations against Napster
as well as RIAA crackdowns on university piracy
Robert Lemos, "Napster Plays Dodgeball with Music Biz":
Discusses some of the copyright claims that could
be brought against the Napster service
Courtney Macavinta, "Recording Industry Sues Music Start-Up,
Cites Black Market":
Explains some of the Napster features and describes some
of the copyright complexities raised by the suit
Chris Oakes, "Time for a Napster Rest?":
Describes Internet traffic bottlenecks on university
computer systems attributable to wide-scale Napster use
on campus networks and efforts to block access to the site
by some university administrators
Mark Pesce, "Napster, The Media Network That Might Upstage
The Web":
Provides some detail on how the Napster service operates
Scott Rosenberg, "The Napster Files"
: Provides some detail on how the Napster service
operates
John Borland, "Napster Can Play On, but Threat Looms:"
Napster decision could result in the shut-down of
the service, particularly if it is found liable for major
financial damages
Bevin Cummings, "Vox Populi on Napster:" The Industry
Standard scoured Internet message boards for the public's
reaction to the federal court's ruling
Mike Drummond, "Napster, BMG Skinny on Details:"
Though a major announcement, few questions answered
after the announced alliance between Napster and Bertelsmann
Benny Evangelista, "Napster Users Turn Down the Volume:"
Report of 80% drop in number of music files shared
on the Napster service as new filters are blocking an estimated
1.6 billion song files
Brad King, "Music Sites Like Napster Pay Plan:"
Companies such as Emusic and Listen.com are encouraged
by the idea of a subscription based model for Napster because
it allows them to charge for their own services
Brad King, "Study: Napster Use Isn't Stealing:"
A recent study indicates that both Internet and non-Internet
users felt downloading music was not stealing
Hane Lee, "Napster Won't Remain the Same:" A subscription
based model for Napster may not work because users expect
the service to be free but viable alternatives may not exist
Andrew Morse, "Napster Adds Some Political Muscle:"
Napster has hired Manus Cooney, a senior aide for Senator
Orrin Hatch (R-Utah) to advise on policy matters
Andrew Morse, "Sleeping With the Enemy:" Commentary
on alliance between Napster and Bertelsmann
Andrew Morse, "Where's Napster's Pay Service? Don't Ask:"
Recent activity suggests that Napster and Bertelsmann are
not well coordinated in their efforts to roll out the promised
subscription based model for the service
Roger Parloff, "Court's Rebuke of Napster Gives Superlawyer
Boies Surprising Wiggle Room:"
Article suggests that the decision from the Appeals
Court avoided the important issue enforcement
Sue Zeidler, "Napster CEO Says Millions Still on Service:"
Napster CEO reports that the service still has 8
million users each day
Gnutella
Janelle Brown, "The Gnutella Paradox:"
Introduction to the Gnutella technology and the potential
legal difficulties of shutting down the service
Michael Delio, "Gnutella Development Gnotted:"
Conflict between programmers that have been supporting
Gnutella could threaten the technology
Technological Alternatives
John Borland, "New Technology Could Help Squelch Digital
Music Piracy:"
Manufacturers attempting to create safeguards for
data storage that prevent the copying of copyrighted materials
onto their hard drives
Melanie Austria Farmer, "Report: Music Pirates Will Evade
Countermeasures:"
Predicts that many technical solutions to thwart
illegal copying will be ineffective
Gwendolyn Mariano, "Attacking Piracy at the Source: CDs:"
The music industry is seeking protection against
online piracy on a variety of fronts
International and Comparative
Law
Treaties/International
Agreements
Berne Convention
(links to full text)
Berne Article 2
(defining the scope of copyright protection granted under
the treaty)
Berne Article 9
(right of reproduction)
Berne Article 13
(sound recordings)
Berne Article 14
(cinematographic rights)
Universal Copyright Convention, Paris, 1971
WIPO Copyright Treaty of 1996 (
full text
)
WIPO Performances and Phonograms Treaty of 1996
World Trade Agreement 1994 (establishing the WTO and including
GATT 1994)
Articles
Robin D. Gross, "Swedish Court Exonerates Teen of Internet
Music Piracy":
Prosecutorial charges brought against a teenager
who was linking to pirated music files from his website
were dismissed after a Swedish court found that the teen
did not "copy, distribute or spread the pirated music files"
and, thus, was not guilty of music piracy
Christopher Jones, "Swedish Retailer Pushes MP3"
: Swedish company claims to be the first in Europe
to offer secure digital music distribution
Patrizia Piccolo, "Music Copyright": Canadian perspective
of music and copyright from a student-at-law
Statutes
Australian Copyright Act of 1968
Informational Sites
Articles, Analysis and Letters from the Dec. 1996 WIPO Diplomatic
Conference in Geneva
World Intellectual
Property Organization
International Copyright:
From Bitlaw
International Copyright Protection:
From Findlaw.
International Trade Instruments, Treaties, Conventions,
Model Laws, Rules
International Copyright Infringements In Cyberspace: A Conflict-of-laws
Analysis
Doing Business in Argentina
: See paragraph 4.4 on copyright.
EU Amended proposal for Directive on copyright and related
rights
Franklin Pierce Intellectual Property Mall
: International intellectual property links
Personalities
Shawn Fanning,
Founder of Napster
Business Week e.biz 25
: Fanning chosen by Business Week as one of the top
influential people in eBusiness for 2000
Chris Connelly, "Shawn Fanning Speaks:"
Interview with Fanning conducted by MTV
Nathaniel Fredman, "Napster Founder Shawn Fanning:"
Interview with Fanning conducted by U-Wire
Lynda Gorov, "Hi, I'm Napster:"
Profile of Fanning by the Boston Globe
Karltaro Greenfeld, "Meet the Napster:"
Profile of Fanning and the events leading up to the
creation of Napster
Giancarlo Varanini, "Q&A with Napster creator Shawn
Fanning:"
Interview with Fanning conducted by ZDNet
David Boies, Napster Lawyer
Boies, Schiller & Flexner:
Law firm co-founded by Boies in 1997 that has handled
a variety of high-profile cases
Oral Arguments Before the U.S. Court of Appeals for the
Ninth Circuit:
MP3 files of key sections of the Napster Oral Arguments
presented by Boies on October 2, 2000
Susan Garland, The Microsoft Trial: The Best Legal Show
in Town:"
Discussion of Boies as one of the two key litigators
in the Microsoft case
John Heilemann, "David Boies: The Wired Interview:"
Interview with Boies conducted by Wired
Hilary Rosen, RIAA president
John Borland, "RIAA chief determined to keep copyright controls:"
Interview with Rosen conducted by CNET
Janelle Brown, "On the Record:"
Interview with Rosen conducted by Salon
Jason McCabe Calacanis, "RIAA CEO Hilary Rosen on the Music
Industry's Reaction to Digital Technology:"
Part II of Interview with Rosen conducted by Silicon
Alley Reporter in conjunction with Digital Coast 2000 Conference
Brad King, "A Chat With Hilary Rosen:"
Interview with Rosen conducted by Wired
Brad King, "RIAA Chief: Piracy Is Doomed:"
Interview with Rosen conducted by Wired available
in MP3 format
Julene Snyder, "Jam Session With Music Exec Hilary Rosen:"
Interview with Rosen conducted by The Industry Standard
Tess Taylor, "An Interview with Hilary Rosen:"
Interview with Rosen conducted by The Los Angeles
Music Network
Michael Robertson, CEO and Founder of MP3
Michael Robertson:
Biography on the MP3 website
Tom and David Gardner, "Fool Interview with Michael Robertson,
CEO of MP3.com:"
Interview with Robertson conducted by The Motley
Fool
Brad King, "He Wants His My.mp3.com:"
Interview with Robertson conducted by Getsigned.com
Beth Lipton, "View From the Eye of the Net Music Storm:"
Interview with Robertson conducted by CNET
Gerri Miller, "A Conversation With MP3.com's Michael Robertson:"
Interview with Robertson conducted by Wired
Aaron Pava, "Michael Robertson Interview:"
Interview with Robertson conducted by ZDNet
Michael Robertson, "Top 10 Things RIAA Should Do:"
Suggestions outlined by Robertson for the RIAA to
bridge the gap in communications
Related Conferences
Signal or Noise?
A conference co-sponsored by the Berkman Center
and the Electronic
Frontier Foundation
that explored the legal and social implications of online
music distribution. The conference was held on February
25, 2000. The proceedings may be found in a
RealVideo archive.
For more information on the legal and social implications
MP3 technology, read the
briefing book
prepared in connection with the conference. In addition,
Harvard's policies regarding Napster and other P2P technologies
are discussed in a November 15, 2000
roundtable discussion
.
The Future of Music Policy Summit
: held January, 2002 in Washington, D.C. to capture
the views of music, business, and technology
All Shook Up - The Music Industry Confronts the Internet
and Consolidation:
Conference sponsored by the The Harvard Journal of Law
& Technology on April 21, 2001. Keynote speaker
was
Nicholas Butterworth, President and CEO of MTVi
.
Back to Top
| Intro
| Case Studies
| Readings
| Discussion Topics
| Additional Resources
|