FREE SOFTWARE PAGE
July 3, 2003
Copyright (c) 2002 New York Law School Law Review
New York Law School Law Review
2002 / 2003
46 N.Y.L. Sch. L. Rev. 279
LENGTH: 16863 words
& COMMENTS: BEYOND NAPSTER, BEYOND THE UNITED STATES: THE TECHNOLOGICAL AND INTERNATIONAL
LEGAL BARRIERS TO ON-LINE
Jeffrey L. Dodes
... Courts in the United States and throughout the world are faced with great
challenges in adjudicating legal conflicts created by the rapid development of
digital technologies. ...
Copyright law, particularly in the area of music, is at the forefront of these latest
developments due to the rapid rise of Napster, an internet file sharing service
that allows for easy transmission of digital files directly from one computer
user to another without payment. ... The RIAA alleged that Napster is
"operating, a haven for music piracy on an unprecedented scale" and sued the Internet service for contributory and vicarious
copyright infringement. ... Seven months later, on February 12, 2001, the Court of
Appeals issued its opinion in A
& M Records, Inc. v. Napster, Inc. . The court upheld-in-part the district
court's preliminary injunction because the RIAA had substantially prevailed on
appeal, and reversed-in-part remanding for modification as to Napster's
liability for contributory
copyright infringement. ... Part IV makes some recommendations for a solution to
copyright infringement of music on the Internet. ... Section 512 limits or negates the
liability of certain entities in the chain of technologies involved in
copyright infringement on the Internet. ... Had the creators of [the technology] not
created that particular application - by not creating it in the first place -
the creators would have been able to block that
copyright infringement. ...
Courts in the United States and throughout the world are faced with great
challenges in adjudicating legal conflicts created by the rapid development of
digital technologies. The proliferation of new technologies that allow for
fast, reliable and widespread transmission of digital files has recently
created a swell of litigation and media coverage throughout the world.
Copyright law, particularly in the area of music, is at the forefront of these latest
developments due to the rapid rise of Napster, an internet file sharing service
that allows for easy transmission of digital files directly from one computer
user to another without payment.
n1 In just eighteen months, Napster developed from a college campus based
following of thousands, to the fastest growing home software application ever.
n2 The renegade service became a worldwide phenomenon with 65 million software
downloads and 16.9 million unique users as of February 2001.
Napster's rapid rise in popularity raised the concerns of the Recording
Industry Association of America ("RIAA") which filed a lawsuit against Napster on December 6, 1999. The RIAA alleged
"operating, a haven for music piracy on an unprecedented scale"
n4 and sued the Internet service for contributory and vicarious
copyright infringement. In A
& M Records, Inc. v. Napster, Inc.,
n5 the district court granted the RIAA a preliminary injunction after finding
that Napster would very likely be found liable for facilitating
copyright infringement when a full trial is eventually held. Two days later on July 28,
2000, a panel of judges for the U.S. Court of Appeals for the Ninth Circuit
reviewed the order and stayed the injunction until further hearings were held.
Seven months later, on February 12, 2001, the Court of Appeals issued its
opinion in A
& M Records, Inc. v. Napster, Inc. .
n7 The court upheld-in-part the district court's preliminary injunction because
the RIAA had substantially prevailed on appeal, and reversed-in-part remanding
for modification as to Napster's liability for contributory
copyright infringement. Although the district court's injunction was not affirmed
outright, essentially the RIAA won the appeal because the Court of Appeals
agreed with the district court's finding of contributory and vicarious
copyright infringement and rejected all of Napster's defense arguments. The court
determined that the original injunction as constructed by the district court
was too broad, however, and on remand placed the burden on the plaintiffs to
notify Napster of the specific infringing files in question. On March
5[su'th'], the district court redrafted the injunction to conform with the
Court of Appeals opinion.
n8 Based on the order, once Napster received a list of copyrighted works owned by
the plaintiffs, it was to block transmission and/or remove all complementary
search ability for the named files on its system within three days.
This decision is a clear victory for the U.S. music industry and will have
considerable impact on the legal business models
n10 that develop
[*281] for the digital distribution of music and other copyrighted material over the
Internet. This begs the question, however, whether the legal precedent created
by the RIAA's victory will prevent similar
copyright infringement by Internet services in other countries. There are already
international treaties in place that help protect
copyright holders from infringement outside the United States,
n11 but ultimately each individual country's
copyright laws are applied to determine infringement in that country. This creates
possible problems for on-line
copyright enforcement when the infringing service is based outside of the United States.
In addition to the legal difficulties of enforcing a U.S. based
copyright infringement judgement abroad, there are significant technological and
ideological barriers to enforcement as well. Even with a judgement in their
favor, a plaintiff may have no remedy because based on new file sharing
systems, the infringement may be nearly impossible to prevent technologically.
The developers of some of these systems hold radical views on
copyright and scoff at the idea of intellectual property. Some have even gone so far as
to design their technologies to fall within gaps in current
copyright law. These technologies are so well developed and distributed that offensive
technological measures may be the only method of stopping them. Yet these
measures create various public relations and privacy law problems that make
them potentially undesirable.
While courts of law and international treaties will continue to be significant
factors in the prevention of on-line
copyright infringement, they will not be able to solve the problem alone. A true
solution also requires new business models and strengthening current
copyright law. The current law provides the standards for determining
copyright infringement, but stricter infringement standards are necessary to deter the
development and deployment of illegal file sharing services. The music industry
must also develop creative alternatives to
copyright infringement in the short term, as well as workable digital distribution
[*282] models in the long term or they risk continued widespread infringement of
Part II A of this note explores American
copyright law as well as international treaties that may apply to a case of
copyright infringement. To place these issues in the proper context, Part II B includes
a brief explanation of the current digital technologies that are making
traditional legal principles more difficult than ever to apply. Part II C looks
at Napster's defense arguments and their treatment by the Court of Appeals.
Part III A goes on to analyze a hypothetical scenario where Napster is enjoined
in the United States, but moves to another country to rebuild its service and
continues contributing to the illegal copying and distribution of music files.
Part III B discusses the emerging infringing technologies, their ideologue
developers and the problems they present for
copyright enforcement. Part IV makes some recommendations for a solution to widespread
copyright infringement of music on the Internet. Part V concludes that current
copyright law is central to the solution of rampant on-line
copyright infringement, but that it cannot solve the problem on its own. The solution
requires a strengthening and broadening of current
copyright law, development of technological measures to counteract the newest insidious
file sharing technologies and new creative business models to offer legal
digital music to the public.
II A. General
Copyright Act, Title 17 of the United States Code, grants the exclusive rights of
creators to their creative expression.
n12 The Act grants a number of exclusive rights, including the right of
reproduction, distribution, adaptation, public display and public performance
of an owner's works.
n13 It extends only to original expressions and does not protect ideas, systems,
procedures, concepts and factual information or protect pre-existing ideas in
the copyrighted work.
n14 Section 102 of the
Copyright Act extends this property right directly to musical compositions and Section
copyrights in sound recordings.
In granting and enforcing these rights, Congress and the courts must balance
the law's objectives of promoting widespread distribution of original creative
works, while providing incentives to authors and
[*283] owners to create such works.
n16 In keeping with this
"balancing act" Congress has amended Title 17 many times since it was enacted to keep pace
with technological advances. Recent amendments include the Audio Home Recording
Act and the Digital Millenium
n17 Current advances in technology continue to put pressure on this balance by
allowing works to be easily copied without permission from
copyright owners and thereby requiring yet another reevaluation of
Changes in the
Copyright Act that were triggered by the Internet started to appear in 1995 when the
Digital Performance Right in Sound Recordings Act ("DPRSA")
n18 was enacted. This law provides limited
copyright protection to public performance rights in sound recordings and grants
copyright owners for the digital performance of their works. In October 1998, Congress
enacted The Digital Millennium
Copyright Act (DMCA).
n20 Upon signing the DMCA into law, President Clinton declared that the goal of
the new act was to respond to
"fundamental changes in
copyright commerce caused by the Internet" and to
"protect from digital piracy the
copyright industries that comprise the leading export of the United States."
[*284] Title I of the DMCA adds a new Chapter 12 to Title 17 of the United States
Code that prohibits the circumvention of technological measures that control
access to a copyrighted digital work.
n22 The practical effect is to prevent circumvention of protective measures, such
as the digital rights management or digital watermarking technologies discussed
infra, but the provision is also being used by new file sharing technologies to
insulate themselves from certain theories of
Title II of the DMCA includes the Online
Copyright Infringement Liability Limitation Act.
n24 Section 512 limits or negates the liability of certain entities in the chain
of technologies involved in
copyright infringement on the Internet.
n25 Essentially, Title II of the DMCA forces
copyright owners to target the actual infringers, those individuals who upload songs
without permission, instead of simply the Internet Service Provider (ISP).
n26 In order to qualify for a
"safe harbor," upon proper notice, the ISPs must remove infringing material from its service,
instead of ignoring its presence. In doing so, the DMCA punishes the specific
user who is responsible for online music infringements instead of the ISP in
certain circumstances. At the same time it creates a potential loophole for
ISP's to claim no responsibility for the infringing actions of their users
without prior notice, even if they know that infringement may be taking place.
It is exactly this loophole that Napster used unsuccessfully as one if its
central defense arguments.
[*285] Technological advances, coupled with the fact that the Internet is an
international medium, have also lead to the enactment of laws and treaties that
copyrights outside of the United States. Since
copyright laws are territorial in nature,
copyrights protected in the U.S. are not necessarily protected under the
copyright law of another country, unless certain conditions are satisfied.
n28 If a particular copyrighted work is protected under the laws in its country of
origin, it then must be determined whether the material is eligible for
protection in another country.
n29 If the law of another country is not clear whether the
copyright is protected in that country, one must look to whether the work is eligible
for protection under bilateral treaties, regional treaties or multinational
treaties or conventions.
n30 Most countries are members of the Berne Convention for the Protection of
Literary and Artistic Works,
n31 which not only establishes the rules for eligibility for protection in other
countries, but binds countries to protect another Berne Convention member's
protected works at a minimum level.
There are also other agreements, treaties and conventions that establish
eligibility rules and minimum levels of protection for works from one member
country by another country where protection is sought. The most significant of
these are the TRIPS Agreement in the World Trade Organization's group of
agreements dealing with international trade rules,
n33 the Geneva Phonograms Convention,
n34 the Rome
n35 and the new
"digital" treaties, the World Intellectual Property Organization (WIPO)
Copyright Treaty and the WIPO Performances and Phonograms Treaty.
n36 Title I of the DMCA implements both treaties, which provide
copyright protection for United States works abroad,
n37 in addition to giving authors the exclusive right to authorize their works for
availability over the Internet. The
copyright laws of each country, together with all of these treaties, establish the basis
copyright protection throughout the world.
II B. General Internet Technology Background
Nothing in recent history has forced a reevaluation of
copyrights in the technological age like the Internet.
n38 The digitization of copyrighted material allows for instant
"perfect" copies of original works to be transmitted from one personal computer to
another over the Internet. These copies can then be delivered to millions of
users at an exponential rate.
[*287] The Internet allows infringement of nearly all forms of copyrighted materials,
but music has been one of the most dramatically affected industries thus far.
n40 With the advent of streaming, digital downloads and compression technologies
music has become an on demand commodity on the Internet.
n41 This creates both an opportunity and a dilemma for music
Copyright owners have the opportunity to develop profitable digital distribution systems
for music that will allow for inexpensive, efficient transfer of copyrighted
musical compositions to consumers.
n42 The industry also faces the dilemma, however, of significant potential for
copyright infringement with limited technological ability to stop it.
The development of MP3 technology is a major factor in the current legal
disputes over file sharing on the Internet. MP3 is a digital compression
technology which stands for MPEG-1 Audio Layer 3.
n43 Compression technologies such as MP3 allow audio data, which generally
requires large files, to be compressed into relatively small files that are
easily transferred across the Internet and downloaded onto a personal computer.
These files are digital, so they retain near CD-quality sound no matter how
many copies are made, and once downloaded can be played through a computer or
other MP3 compatible device
[*288] any time the listener wishes.
n44 Free MP3 software applications available on the Internet allow users to encode
songs from their own CD collections by
n45 the files from their CDs into the MP3 format and placing the files on the
users hard drive thereby allowing users to trade songs across the Internet.
People using this process almost never have permission from
copyright owners to make digital copies of their music available on the Internet, and as
such they are directly infringing music
Although it is fairly easy to encode MP3 files using a CD audio disc and a
computer with the proper software,
n47 the wide spread acceptance and proliferation of illegal MP3 trading has grown
exponentially in the last two years due to a technology called peer to peer
(P2P) file sharing.
n48 Simply put, the technology allows users to exchange content over the Internet
directly from one users' hard drive to another. Prior to the advent of P2P file
sharing, pirated content was only available through a direct download of the
file to the users' hard drive from a website hosted on a central web computer.
n49 In this model, the users' computer is the
"client" and central computer is the
"server." In the P2P model, the users' computer acts as both client and server.
n50 Napster is just one permutation of a P2P file sharing software.
n51 It allows end users to post and share music files with other users. Users
search for a particular music file and the software tells them on what other
users' hard drive the file is available, and at what connection speed. Once the
file is downloaded, it becomes another source for other users to download
unless dictated otherwise. Napster and other
[*289] P2P software do let users shut down access to their files so that no one can
take a file off their computer against their will.
Strictly speaking, Napster isn't completely P2P. It uses servers to provide
directory services for file locations. Pure P2P systems simply use a network of
computers as hosts that pass requests and information directly to one another.
n53 This simple structural detail of the Napster system is one of its
"fatal flaws" in its legal argument against contributory infringement discussed infra. Since
Napster servers are a necessary element to indexing and searching for song
titles, they cannot rightfully claim that the file exchange occurs solely
between two private individual users.
The combination of P2P file sharing software with MP3 compression has created
the current legal and technological dilemma. Since MP3 files generally contain
copyright management system they offer no protection against unauthorized copying, use
or distribution. Without
copyright management information, it is impossible to determine who exactly is
infringing or how many copies of copyrighted materials are being made. Recently
developed compression technologies have
"digital rights management" (DRM) systems built into their audio formats.
n55 Digital rights management allows content providers of copyrighted materials to
impede unauthorized replication of a digital work by setting certain rules by
which the content can be accessed. Rights management technologies are in the
early test phase and show promise in protecting digital files.
n56 The protection offered by DRM's is limited, however, by the technology of the
hardware or software that interacts with the digital files. In other words, a
properly protected file may lose all of its DRM protection if played on an MP3
player or portable
n57 that does not support the particular DRM used to protect the file.
Another type of rights management technology is called watermarking. The basic
purpose of digital watermarking is to encode data within the digital format
about the author, the
copyright date, and permit uses of the material.
n58 When used in conjunction with tracking tools,
copyright owners are able to track down and potentially prosecute infringers. Digital
watermarking does not prevent copying in the first instance, and therefore does
not safeguard against unauthorized copying. Another drawback of watermarking is
that digital files that are already in the marketplace
n59 without watermarking technology can be digitally copied without being traced
There are several other types of digital rights technologies available or in
n60 but given the current state of the hardware
n61 and software,
n62 none solve the current problem of digital
[*291] infringement. Even if secure digital rights technologies do succeed in
copyrights on-line there still remains the question of whether these technologies will be
accepted by consumers. If they are, additional questions about fair use rights
arise, which are discussed infra.
n63 If consumers reject these protective measures in favor of unsecured digital
copyright owners will have to contend with Internet piracy with limited technological
ability to prevent infringement.
II C. Napster's Defense
It is within this background of
copyright protection and technology in both the United States and abroad that the
Napster suit arose. Napster made several arguments in defense of its file
sharing system. Its principal defense argument was that there was no direct
copyright infringement by Napster users.
copyright infringement occurs when a party violates any of the
copyright holder's exclusive rights.
n65 Napster claimed that its users were not infringing
copyrights, but instead they were making
"fair use" of the copyrighted works when they downloaded music files and traded with
n66 Fair use is a defense to
n67 It limits the extent of property interest granted to the
copyright holder. This right allows a person or organization the ability to use an
excerpt or an entire copyrighted work when used for purposes of teaching,
research, news reporting, comment, criticism or parody without express
permission from the
n68 There is no set formula for determining at the outset whether a use will
qualify for the fair use defense. Whether the court allows someone other than
copyright holder to reproduce, distribute, adapt, display and/or perform copyrighted
works depends upon four factors: (1) the purpose and character of the use
(commercial purposes, non-profit, educational); (2) the nature of the
copyrighted work; (3) the
"amount and substantiality of the portion used" in relation to the work as a whole; and (4) the effect of the use upon the
potential market for the work or the value of the work.
In general, commercial
"for profit" uses are not considered fair use.
n70 A person is not allowed to take the
"value" of a work without permission and sometimes that value is found even in a short
clip or excerpt.
n71 The Court of Appeals did accept a portion of Napster's fair use argument that
the service does have substantial non-infringing uses,
n72 but this argument was not enough to demonstrate a complete fair use defense.
In the end, the court rejected Napster's fair use argument based on all four
Although the Court of Appeals requested that the district court modify the
original injunction with relation to Napster's liability for contributory
infringement, the court held that Napster would likely be found liable for
contributory infringement after a full trial.
copyright infringement occurs when a person or entity,
n75 with knowledge of the infringing activity, induces, causes, or materially
contributes to the infringing conduct of another.
n76 Contributory infringement
[*293] extends liability beyond the direct infringer and imposes liability equally on
other parties who contributed to the infringement.
n77 The court determined that Napster had actual and constructive knowledge of its
users infringing activity and was thus liable for the actions of its users.
n78 The court requested a modification of Napster's liability for contributory
infringement based on the fact that just because a technology has significant
infringing capabilities does not make its operator liable for contributory
infringement unless the system operator is aware of the specific infringement.
n79 Hence, the district court had to modify the order to include notification by
the RIAA to Napster of the specific copyrighted works that its users infringed.
In accordance with Napster's general denial of any direct infringement by its
users, Napster also argued that it therefore could not be liable for vicarious
n80 Vicarious infringement expands the scope of liability to third parties not
directly infringing. Vicarious infringement occurs when an entity or person has
the ability to control the activities of a direct
copyright infringer and also receives a financial benefit from the infringing
activities, but does not prevent the infringement.
n81 Liability may be imposed in this situation, even if the entity is unaware of
the infringing activities. Unlike contributory liability, where the behavior
and intent of the defendant determines liability, under a vicarious liability
theory, the relationship between the defendant and the direct infringer
determines the defendant's liability.
n82 The court determined that Napster does have the ability to supervise and
control its users and that Napster derived a direct financial benefit through
the infringing activity, which attracted its large user
n83 Thus Napster was found liable for vicarious
Napster also asserted a statutory limitation defense against liability based on
512 of the DMCA.
n84 They argued that they are covered by the
"safe harbor" provision given to ISP's so that they are not responsible for their user's
n85 The RIAA argued that the DMCA did not afford Napster this protection because
Napster was guilty of contributory and vicarious infringement.
n86 The court rejected the RIAA's argument stating,
"we need not accept a blanket conclusion that 512 of the Digital Millennium
Copyright Act will never protect secondary infringers."
n87 The court expressly did not want to create a per se rule whereby an entity who
may be liable for vicarious or contributory infringement is ineligible for
application of 512, but instead they opted for a case by case analysis.
n88 Based on the facts of this case, where it is unclear whether Napster fits the
definition of an ISP under 512
n89 and the balance of equities falls in favor of the RIAA, the court was
ultimately unwilling to allow Napster the protection of the DMCA
"safe harbor" provision.
Napster's final significant defense argument was
n90 By attempting to prevent Napster's users from downloading and trading music
files, Napster claimed that the music industry is using their
copyrights for anti-competitive purposes.
n91 In essence, Napster argued that the music industry was trying to gain control
over Napster through their
copyrights and that this is copyright misuse.
n92 As with the rest of Napster's affirmative defenses, however, the court
[*295] this argument as well stating,
"there is no evidence here that plaintiffs seek to control areas outside of
their grant of monopoly. Rather, plaintiffs seek to control reproduction and
distribution of their copyrighted works, exclusive rights of
n93 With this final argument cast aside, the court affirmed the injunction to
prevent what it perceived to be the continued harm caused by the Napster system
and also remanded to the district court to narrow the injunction as discussed
supra in Part I.
III A. The Napster Case in the International Context
Based on the foregoing discussion, the Court of Appeals applied relatively
copyright law principles in a very systematic, reasoned fashion. While there are
arguments on both sides of the question, there were no issues of first
impression and the court's legal reasoning was not particularly controversial.
Could the same be said if a
copyright infringement suit arose in which Napster were to take its service abroad and
run it from a foreign country, yet still allow access to U.S. based users? How
would the RIAA enforce its judgement or legally prevent a similar service not
currently enjoined that is operating overseas? Some of the World Intellectual
Property Organization's and World Trade Organization's treaties discussed supra
in Part IIA would likely play a role in a foreign
copyright infringement action of this nature. Since these treaties have not been
ratified in all foreign countries, however, they may be of little help.
copyright law of the individual
[*296] country where the infringing service is based would apply. How would this
potential choice of law conflict play out in the United States? Four
significant legal doctrines are the primary concerns to answer these questions
in a case of international
copyright infringement. These include (1) the presumption against extraterritoriality,
n95 (2) personal jurisdiction,
n96 (3) forum non-conveniens
n97 and (4) choice of law.
The presumption against extraterritoriality deals with the hesitancy of U.S.
courts to apply U.S. law in cases involving foreign or American actors on
foreign soil. It is a principle of international law that national laws cannot
extend beyond its own territories.
n99 The main policy behind the presumption is that by keeping the impact of U.S.
law within the United States, the courts not only avoid potential conflict
between the U.S. and foreign nations, but also avoid difficult choice of law
issues that would otherwise arise.
n100 The various international
copyright treaties discussed supra are additional reasons why U.S. courts are reluctant
to apply U.S. law to foreign infringement cases. Since the various WIPO
treaties and the TRIPs agreement are based on minimum rights and since each
nation's intellectual property laws are assumed not to apply
extraterritorially, a non-extraterritorial approach makes sense.
n101 If U.S. courts applied U.S. law to international
copyright infringement cases, it would effectively render the various treaties
[*297] Courts have consistently held that U.S.
copyright law does not apply beyond U.S. territorial boundaries.
n103 This principle was recently applied in Subafilms, Ltd. V. MGM-Pathe
n104 In that case, the court held that the mere authorization within the United
States of acts of infringement occurring outside of the United States does not
n105 Overruling an earlier decision,
n106 the court held that an
"authorization" only violates the
Copyright Act if the authorized conduct itself takes place within the boundaries of the
Under this doctrine, a non-U.S. based Napster may not be able to be reached by
a U.S. court where the system is not within U.S. boundaries and the
infringement (copying and trading of music files by its users) takes place
outside of the United States. If U.S. based users downloaded files from a
foreign Napster system, they would be liable for direct infringement.
n108 It would be impracticable to sue Napster's users individually, however, so
another theory of infringement would have to be employed. An exception to the
presumption against extraterritoriality in the application of
copyright law is extraterritorial conduct that actively induces or contributes to
infringement occurring within the United States.
n109 Since Napster was found liable of contributory infringement and it is likely
that even a non-U.S. based Napster would also be similarly liable, a plaintiff
would be able to overcome the presumption.
n110 It would be very difficult, however, to fall within this
[*298] exception if the majority of the infringement took place in other territories
outside of the United States.
Assuming the RIAA were to get over the hurdle of the presumption against
extraterritoriality, the next issue to address would be personal jurisdiction.
Personal jurisdiction is always an issue in any on-line
copyright infringement lawsuit. In the international context, it is definitely more
complicated to determine.
n112 Generally, U.S. courts apply the
"minimum contacts test" to determine whether exercising jurisdiction over a particular defendant is
n113 While there are various factors considered under the test, the two key
elements in the international context are whether the defendant
"purposefully availed themselves of the benefits and protections of the forum
n114 and ultimately whether exercise of jurisdiction is reasonable.
The problem with personal jurisdiction, in the on-line context, is that it is
often difficult to determine whether infringers in Europe, who have established
a website targeted to Europeans, but that is also accessible to citizens of
other nations including the United States, actually
"purposefully availed" themselves of the laws of the United States. This
[*299] scenario was recently analyzed in Playboy Enterprises, Inc. v. Chuckleberry
n116 In that case, an Italian website that had U.S. based subscribers was sued for
trademark infringement. The court concluded that even though it could not
prescribe conduct on the Internet,
n117 since Playboy knew that U.S. citizens used its service, the court was entitled
to prohibit access to the site in the United States. Therefore, the defendant
was enjoined from offering its magazine to customers residing in the United
n118 Under this precedent, there is still a case by case analysis necessary, so it
is difficult to predict with certainty if a non-U.S. based Napster would be
subject to jurisdiction in the United States.
Additionally, under most circumstances there will be an
"objective reasonableness" argument to be made where defendants will have to travel thousands of miles to
a foreign courtroom to defend themselves against a law suit that they did not
n119 Courts are split over Internet conduct that is sufficient to justify
jurisdiction, and case law to date has been inconsistent even within the
n120 Most courts apply the traditional personal jurisdiction principles to the
n121 and this may be problematic for U.S. based plaintiffs looking to enjoin
foreign Internet entities. Future case law may have to add more elements to the
"minimum contacts test" to account for
"cyber-contacts" and establish more clear rules and expectations in this area. In the mean
time, it remains to be seen whether a foreign run Napster could be reached by a
[*300] Assuming the difficulties of personal jurisdiction are tackled, however, the
question of what is a convenient forum for the litigation becomes the next
major issue. U.S. courts must decide this question through the application of
the doctrine of forum non-conveniens.
n123 The doctrine requires a case by case analysis and therefore there are no
consistent results among certain classes of cases.
n124 Since the Internet transcends traditional boundaries, it allows for
copyright infringement by many users in multiple countries. In this scenario, choosing
the most convenient forum to litigate the case is difficult. If a choice can be
made and the most convenient forum is in a foreign nation, the U.S. court may
dismiss the case in favor of the foreign jurisdiction under the forum
n125 The problem that arises under the non-U.S. based Napster hypothetical,
however, is that since the direct infringement by users and Napster's servers
are located in various countries, there may be multiple convenient foreign
courts that satisfy the alternative forum element of the doctrine.
n126 Unless the plaintiff has significant financial resources, it would be very
difficult to litigate in multiple foreign courts. This difficulty creates an
atmosphere where in some cases, the costs of infringement may be less than
litigating the claim. In this hypothetical, however, the recording industry
does have the resources to litigate in foreign territories and the interests at
stake are so critical that they would surely make the investment in resolving
the suit outside the United States. While it seems likely that this element of
the RIAA's difficulties in reaching a foreign Napster would be surmountable,
since this factor is also a case by case analysis, the forum non-conveniens
issue could prove to be problematic.
[*301] If the convenient forum hurdle is successfully passed, the final issue to be
determined is what law will be applied to the case, United States law or the
foreign country's law? International
copyright law and the treaties that make up its core are based on the principle of
n127 This means that courts must focus on the location where the acts occurred to
decide which law to apply.
n128 Once again, the Internet context makes the choice of law determination more
difficult given that there could be multiple locations where the infringement
occurs particularly in a P2P network. The WIPO treaties help with the choice of
law quagmire through their requirement of uniform application of
copyright laws, but they do not solve the issue especially where either the service,
and/or the infringement is based in a country that is not a signatory to the
n129 Here again, there is a case by case analysis, which presents significant
potential problems for a U.S. based plaintiff. For example, if a U.S. court
determined on the facts of a case that an exception to the presumption against
extraterritoriality was justified, those same facts may also militate against a
choice of U.S.
Based on the foregoing discussion it is uncertain whether an international
version of Napster could be enjoined in the United States. After a great deal
of complex legal determinations are made, however, it is certainly possible.
Even so, legal representatives for the RIAA are likely concerned about this
scenario. The more daunting next question is whether after all the
international legal issues are resolved, and the RIAA gets a similar judgement
enjoining Napster in a foreign court or a U.S. court applying foreign law, is
it technologically possible to enforce the judgment?
III B. Real World Examples of Technologies and their Developers that Defy
New technologies have developed to a point whereby
copyright infringement is taking place on a massive scale, in multiple countries,
simultaneously by anonymous users. Given the pace of technological advances, a
world where certain technologies are essentially ungovernable
[*302] by the law is the dawning reality.
n130 This scenario is the real challenge to current
copyright law and its enforcement.
The challenge is here today in several forms including the Freenet Project.
n131 Freenet is the brainchild of Scotland's Ian Clarke. As stated on Freenet's
"The 'Freenet' project aims to create an information publication system similar
to the World Wide Web, but with several major advantages over it based on the
[P2P] protocol" developed by Clarke.
n132 Freenet is a single worldwide information database that stores, caches, and
distributes information based on demand.
n133 To participate in the system, users simply need to run a piece of server
software on their computer and optionally use a client program to insert and
remove information from the system. Anyone can write a client or a server
program for Freenet, which is based on an open protocol.
n134 The site describes the system's main features as the following:
"Freenet does not have any form of centralized control or administration.
. It will be virtually impossible to forcibly remove a piece of information
. Both authors and readers of information stored on this system may remain
anonymous if they wish.
. Information will be distributed throughout the Freenet network in such a way
that it is difficult to determine where information is being stored.
. Anyone can publish information. They don't need to buy a domain name or even
a permanent Internet connection.
. Availability of information will increase in proportion to the demand for
[*303] . Information will move from parts of the Internet where it is in low demand
to areas where demand is greater."
These features have a direct impact on
copyright infringement theories, detection and enforcement. Freenet operates in a
decentralized manner and provides users with anonymity. There are no servers to
be shut down and it is nearly impossible to identify who is posting copyrighted
material. This makes direct, contributory or vicarious
copyright infringement claims practically impossible. There is no central index residing
on servers as there is with Napster, which give potential litigants a legal
foundation for contributory infringement. Unlike the Napster system which is
set up in such a way that users can be monitored,
n136 Freenet has no way of monitoring the systems users, so liability for vicarious
infringement is also very difficult to prove.
In addition, Freenet uses intelligent routing and caching which makes it
efficient and scalable. The most popular content is mirrored automatically, so
the more requests for a particular file, the more likely it will be accessible
to the user.
n138 Flooding the network to disrupt information flow will be nearly impossible as
When it is impossible to identify the
copyright infringer, impossible to shut down a central system and there is no single
corporate entity to sue, none of the traditional theories of
copyright infringement apply. Even if the specific infringer is identified and
[*304] once the content is on other anonymous users' systems, how do courts enforce
the judgements when the content is impossible to remove? Napster argues that by
shutting them down, U.S. courts will actually hasten the proliferation of
entities such as Freenet.
n139 This has indeed proven to be true,
n140 but Freenet's own attitude toward
copyright indicates that they will present a problem to
copyright owners with or without Napster or other file sharing services. With regards to
copyright infringement Freenet's initial website stated:
While Freenet has the potential to assist
copyright infringement, this battle has already been lost. Millions of copyrighted audio
and video files are already being traded on the web each day - the absence of
Freenet will not change that. Besides, by far the vast majority of copying
activity does not take place online, but via old-fashioned, industrial-scale
physical CD pressing.
Whether self serving or not, Freenet and its followers do not subscribe to the
traditional notions of
copyright law, but instead stretch the fair use doctrine beyond its limits.
n142 In response to increased publicity of
[*305] services like Freenet, however, Ian Clarke has redirected his rhetoric with an
anti-censorship argument similar to the failed first amendment claim made by
n143 The latest version of the Freenet FAQ states:
Of course much of Freenet's publicity has centered around the issue of
copyright, and thus I will speak to it briefly. The core problem with
copyright is that enforcement of it requires monitoring of communications, and you
cannot be guaranteed free speech if someone is monitoring everything you say.
This is important, most people fail to see or address this point when debating
the issue of
copyright, so let me make it clear:
You cannot guarantee freedom of speech and enforce
It is for this reason that Freenet, a system designed to protect Freedom of
Speech, must prevent enforcement of
With statements like this, it is clear to see the difficult challenge facing
copyright laws and enforcement.
A significant drawback to Freenet's technology, which makes it somewhat less of
a threat in the short term, is that it is not simple to use.
copyright infringers without a computer science degree have choices; the new rising
technology called Aimster
n146 is one of them.
n147 The software was developed in America, but like all Internet applications it
has worldwide implications. Aimster is a cross between
[*306] AOL's Instant Message Service
n148 and Napster. The danger in this new technology, both legally and practically,
is that it lacks the central index server of the Napster system, but unlike
Freenet it is very easy to use.
n149 The system operates like a rudimentary search engine that searches a
n150 hard drive for a matching list of files that may include audio, video,
graphics, text or nearly anything else.
n151 When the user finds something they are interested in, they double click on the
file name; this establishes a P2P connection that begins the file transfer.
n152 A significant difference between this technology and Napster is that the
search function is limited to only a relatively small group of users' hard
drives at a time, which is closer to falling within the traditional idea of the
fair use defense because users are not exposing music files to millions of
users at a time.
n153 Essentially, the universe of possible infringement is limited to small
"cells" of buddies. There are public-domain programmers, however, that are developing
n154 that will enable file sharing beyond a restricted instant message group, using
a distributed index similar to Freenet.
n155 In other words, Aimster will allow the same widespread file sharing as
Napster, but without its legally vulnerable central index. In addition,
Aimster's developers are making future versions compatible with the many
[*307] instant message technologies.
n156 This will allow users to message each other and transfer files across
multiple, disparate messaging platforms.
n157 A multi-platform Aimster creates the ability to share files among 140 million
current instant message users, a user base which is twice the size of Napster's
Further exacerbating the legal arguments against Aimster is the fact that the
application has various non-copyright infringing uses; the most obvious among them is the instant message function.
n159 Other examples that may well fall under fair use include, people who want to
share files among multiple computers and store them on Aimster, or co-workers
who collaborate on documents together. If Aimster is confronted with a suit
seeking an injunction,
n160 this fact will allow them to raise the argument that Aimster is similar to the
VCR in the infamous Sony Corp. of America v. Universal City Studios, Inc., even
more credibly than Napster has argued.
After analyzing some of the decisions in the Napster suit, Napster attorney
n162 advised Aimster to start encrypting all of the information that is exchanged
between users on its network.
n163 Ironically, this makes monitoring impossible without circumventing the
[*308] technology, which violates the DMCA.
copyright owners cannot monitor Aimster to see if their rights are being infringed
without violating the very law that was passed to protect them.
n165 Aimster has learned from watching Napster's legal troubles and is developing a
system that falls between the cracks of current
copyright law. A statement by Aimster's developer, Johnny Deep, makes a compelling case.
"They would have to change the law to shut us down, because we comply with the
law right now. The
copyright owners can go to Congress and ask them to change the law, but right now, they
can't shut us down. And I doubt that Congress is going to roll back the safe
harbor provisions in the DMCA to shut this down. The product we are offering is
the encrypted virtual private network that has incredible non-infringing uses."
All of this leads to a very uncertain picture for music
copyrights in the Internet context.
IV. The Legal, Technological and Creative Solutions to On-Line
Technology has always forced
copyright laws to evolve in reaction to new ways of duplicating and sharing information,
but the Internet has upped the ante. Freenet, Aimster and more recent file
sharing technologies such as Gnutella and FastTrack,
n167 which filled the void
[*309] left after Napster shut down, create scenarios whereby the traditional
American ideas of
copyright infringement are difficult to apply. Those who claim that
"copyright is dead," and cannot stop file sharing
n168 however, need only read the 9th Circuit decision upholding the Napster
injunction and analyze the subsequent repercussions upon Napster to see that
copyright law is alive and well and works as it always has. When the infringing
technology is based in a foreign country, this presents an additional challenge
copyright law may not apply. Thus, U.S. courts must more readily presume
extraterritoriality of laws and jurisdiction in order to compensate when an
international treaty is not enough to prevent infringement. This alone does not
resolve the situation, however, because new technologies are being created to
fall outside of American
copyright protection. Therefore, current U.S.
copyright law, even when applied extraterritorially, does not solve the infringement
problem. Even if a court determines
[*310] that a particular
copyright was violated under U.S. law or an international treaty, if the violator is
anonymous, there is no central server in the chain of infringement and the
court is powerless to stop the work's continued distribution, application of
copyright law does not resolve the matter. Current
copyright law may have
"bark," but it has limited
The law alone will not resolve this
"copyright crisis," but changes in the law are required. The onslaught of new file sharing
technologies and their ubiquitous adoption by consumers is cause for broadening
copyright law in the U.S. and throughout the world. Many say that
copyright law, specifically the DMCA, is already too broad and lobby for its revision
and a weakening of its restrictions.
n169 This approach, however, would make the situation far worse than it already is.
copyright law protection needs to be strengthened in two areas.
First, the doctrine of vicarious liability should be expanded for the Internet
context. Traditional vicarious infringement doctrine requires control over the
direct infringer and financial benefit to the third party. The two elements of
control and financial benefit are lacking with many of the file sharing
technologies at issue. In cases where a developer knowingly creates software
with significant infringing uses, the control and financial gain factors should
be waived. An ideologue such as Ian Clarke is not seeking economic benefit and
systems such as Freenet, FastTrack and Gnutella have no central control. They
do not fit the current structural standards for civil liability or criminal
guilt under a vicarious infringement theory. Yet post-Napster file sharing
developers know that their applications will be used for substantial infringing
activities on a massive scale and should not escape liability so easily.
Developers such as Clarke, Deep and others are creating technologies with the
clear intent of allowing
copyright infringement and then hide behind the doctrine of fair use arguing
[*311] infringing use." Doug Isenberg, editor of gigalaw.com,
n170 raised a counter argument to these defenses.
"I don't think that it's clear from the Ninth Circuit's opinion that the
defendants in that situation could avoid liability," Isenberg said, referring to creators of such file-trading applications [that
are architected to avoid liability].
"I think (the defendants would have) good arguments, but I think they're
unlikely to hold up under the Ninth Circuit ruling. Had the creators of [the
technology] not created that particular application - by not creating it in the
first place - the creators would have been able to block that
Where the developer knows or should have known that their software will be put
to substantial infringing uses, the developer should be held liable for
A corollary to broadening vicarious liability in this context is also narrowing
the fair use defense. The Internet allows a single actor to distribute a
copyrighted work to millions of users, across jurisdictional lines with little
effort or cost. This unique context mandates a narrower fair use defense. As
noted, a technology developer may be exempt from liability under a fair use
defense where the software has
"substantial non-infringing uses."
n172 In the case of a digital application only, the standard should instead be that
a fair use defense is barred where a technology has
"substantial infringing uses." Though this may impede innovation to a degree and therefore impinge upon one
of the core values of
n173 this is outweighed by the other value of
copyright, the property right.
n174 There must be a balancing between the policy values. Innovation at the expense
of another's rights is not the proper balance. The constitutional value of
innovation should not be
"innovation at all costs." A developer can innovate, but he must do so responsibly by ensuring that their
new technology will not have
"substantial infringing uses" by independent actors beyond their control.
[*312] If they do not, it does not necessarily mean they are liable for
copyright infringement, but they should not get the benefit of even raising the fair use
defense. Perhaps this rule would actually increase innovation. A limitation on
the fair use defense might push developers to go beyond simply developing
efficient ways of exchanging digital data over the Internet, but instead to
create efficient ways of exchanging digital data over the Internet without
infringing upon other's rights.
Although these changes in the law are potential deterrents to development of
uncontrollable, substantially infringing technologies, the quickest, effective
solution to widescale
copyright infringement of music on the Internet is not a legal one. Technology itself is
the best way to counteract uncontrollable technology. There are two
technological methods of counter acting this problem. The first goes to the
source of the problem by creating copy protected CD's. Copy protection makes it
"rip" music into MP3 files from CD's and then trade the files within file sharing
systems. Most copy protected CD's won't play on a computer or play with
degraded sound quality, but will play in a standard CD player.
n176 The problem is that the copy protected discs that record labels have released
so far have had problems. Many copy protected discs will not play in car CD
players, DVD players or certain brands of standard CD players. In addition, the
practice of ripping tracks from CD's for personal use on a computer and for use
in multi-song compilations that are later
"burned" onto CD's, is very popular and is not possible with copy protected CD's
because copy protection cannot discriminate between legal and illegal behavior.
This has created a strong backlash from the public and strong fair use
arguments from the legal community against anti-copy technology.
[*313] Since consumers are accustomed to making copies of their music collection and
the Audio Home Recording Act allows duplication for personal use, the fair use
argument against anti-copy technology is reasonable. The amount of infringement
taking place on the Internet today, however, goes far beyond fair use. Once
again a balancing of policy concerns is necessary. The ability of consumers to
listen to CD's on their computers is important, but does this trump a
copyright owner's rights? There are reasonable arguments on both sides, but the Internet
context here is the critical factor. Where one digital file can be
exponentially duplicated on the Internet in a short amount of time, the balance
tips toward allowing some form of copy protection. Legislative regulation of
hardware and software standards for copy protection that has recently been
introduced in the U.S. Congress goes too far.
n178 The music companies must instead develop better anti-copy technology that
prevents ripping MP3 files, but allows a user to play CD's in their home and
car CD players and to copy files onto analog tape or portable MP3 players.
n179 The DMCA's provision against anti-circumvention of copy protection implies
that copy protection is legal. Barring all copying would clearly violate fair
use, but fair use does not call for the best possible copies, the doctrine
simply allows limited copying under certain circumstances. The music industry
should be allowed to take advantage of copy protection technology that protects
its rights in the most consumer friendly method possible.
A second and even more radical approach to solve the on-line infringement
"anti-piracy counter measures."
n180 Under this
copyright owners themselves could attempt to disrupt the duplication and distribution of
infringing files on a given file sharing network by using various technological
methods. These include information collection, spoofing and interdiction.
n181 Information collection identifies different data from a file sharing network
which allows the network to be mapped. This map is essentially a snapshot of
the network, identifying what files are on the network, the IP addresses of
specific users, digital fingerprints of specific files and other data.
Spoofing is the practice of distributing misinformation in order to frustrate
illegal file sharing. There are various methods of spoofing, but the most
straightforward method is to flood a network with mislabeled files so the user
does not get what they are searching for. For example, a file called
"The Beatles - Yesterday" which actually contains
"white noise" could be introduced and replicated throughout a network so that many of the
search requests for
"The Beatles" or
"Yesterday" would come back with the spoof file instead of an actual music file. This
practice would frustrate users and make file searching much more inefficient.
Interdiction is a method of blocking access to certain files within a file
sharing network. It is accomplished in various ways, but the most effective way
of blocking a file is by continually occupying the download slots on a target
"repeatedly requesting the same file and downloading it very slowly, essentially
preventing other peers from accessing the file or sharing any other file."
n182 Unlike spoofing, interdiction is the most direct technological measure a
copyright owner can take because it targets and prevents specific users from
distributing copyrighted works.
The three anti-piracy methods are distinct, but are most effective when
implemented in concert. These methods could be very effective in severely
limiting file sharing without
"destroying or damaging the files themselves or the user's computer or software,"
n183 but they still create significant legal and public relations problems for the
n184 There are various federal and state laws that could be implicated by
anti-piracy measures including privacy, computer and consumer
[*315] protection laws
n185 so the music industry must proceed carefully.
Potentially more damaging than the risk of criminal or civil actions against
the music industry, is the potential public backlash. One of the industry's
most active demographic, young people between the ages of 12-24, are also the
majority of users within the various file sharing networks.
n187 The public relations fall out from offensive anti-piracy measures may have a
negative impact on the industry in the short term, but allowing unabated file
sharing to continue will have significant long term effects that may be more
damaging. The industry must consider implementing some of these technological
measures in limited circumstances to prevent continued infringement.
Finally, and most important for a long-term solution, the music industry must
embrace the idea behind file sharing technology and develop legal, economic
models, which benefit the artists, recording companies, technology developers
and the consumer. All of the major record companies have indeed started to do
this by supporting a new on-line music distribution model known as the
"digital subscription service." The two leading subscription services are MusicNet and Pressplay.
n188 Different consortiums of the major record companies own both services and with
limited exceptions, neither includes content available on the other.
n189 The newly launched subscription services
[*316] have various subscription levels and service options, but most allow users to
stream and download a limited number of music files in exchange for a monthly
fee. There is no file sharing involved in these services. They are not peer to
These new services launched in late 2001 and early 2002 and have not released
any subscriber numbers to date. So far, the press has criticized both services
for their downloading restrictions and inability to burn songs onto CD's and
n191 The main critique is that the music industry is only allowing consumers to
rent digital music, not own it. Once a consumer stops paying for their
subscription all of the music files they have downloaded through the service
are disabled. The current services clearly have to develop further and get
closer to the model that Napster proved is popular among consumers. The problem
for the music industry is that subscription services require a complete change
in the business model and economics of the music business. For the music
business to allow individual song downloads that are portable and owned by the
consumer in perpetuity will require a complete shift in the way the industry
conducts business. The industry will have to grapple with these major issues
and the public will have to be patient. It is easy to develop a compelling
on-line music service like Napster where everything is free and
copyright infringement is disregarded. It is a real challenge to develop a successful
service that is both legal and profitable.
The most logical and realistic solution to the problem of on-line
copyright infringement throughout the world is not simply a legal one. To be sure a
solution requires changes in the law, but a long-term solution also requires
offensive technological measures and creative business ideas. Many of the
proposals herein are clearly controversial, but these new file sharing
technologies are also controversial and to control them requires strong legal
disincentives and more limitations of consumer behavior. The hope is that these
requirements will be short-term and that the best minds within the legal,
technology and business communities will be able to come together to develop
[*317] and business models that serve all parties' best interests, most importantly,
n1. There have been many developments with Napster, the corporation, and Napster
the software application since this note was finalized. The service voluntarily
shut down in July 2001 with the hopes of re-launching before the end of
September 2001. As of January 2002, the service was still not available to the
general public, but a
"beta" version of new Napster software that is designed not to infringe
copyrights was in testing with a limited number of consumers. For the latest developments
and more detailed information on Napster see http://www.napster.com.
n2. Media Metrix Press Release: Napster Software-Application Usage Soars 500
Percent To Nearly Seven Million U.S. Home Users, According To Media Metrix
(Oct. 5, 2000), available at
http://us.mediametrix.com/press/releases/20001005.jsp (last visited Jan. 29,
n3. Media Metrix Press Release: Jupiter Media Metrix Announces U.S. Top 50 Web And
Digital Media Properties For February 2001, Napster now is the 13th most
visited property with 16.9 million unique visitors (Mar. 13, 2001), available
at http://us.mediametrix.com/press/releases/20010313.jsp (last visited Apr. 15,
2001). By the time the service shut down in July 2001, Napster software was
downloaded 80 million times.
n4. RIAA Press Release: Recording Industry Sues Napster for
Copyright Infringement (Dec. 7, 1999), available at http://www.riaa.com/PR
Story.cfm?id=70 (last visited Jan. 29, 2001).
114 F. Supp. 2d 896 (N.D.Cal. 2000).
A&M Records, Inc. v. Napster, Inc., 2000 WL 1182467 (9th Cir. Jul. 28, 2000).
239 F.3d 1004 (9th Cir. 2001).
A&M Records, Inc. v. Napster, Inc., 2001 U.S. Dist. LEXIS 2186 (N.D.Cal. Mar. 5, 2001).
n9. See id.
n10. The RIAA believes that
"what Napster is doing threatens legitimate e-commerce models and is legally and
morally wrong." See RIAA Press Release: Music Industry Files Motion for Preliminary Injunction
Against Napster (June 12, 2000), available at http://www.riaa.com/PR
Story.cfm?id=284. (last visited Jan. 29, 2001).
n11. See The Agreement on Trade-Related Aspects of Intellectual Property Rights
(1994), available at http://www.wto.org/english/tratop e/trips e/t agm0 e.htm
(last visited Jan. 28, 2001); WIPO
Copyright Treaty (1996), available at http://www.wipo. org/treaties/ip/copyright/copyright.html (last visited Jan. 28, 2001); WIPO Performances and Phonograms Treaty
(1996), available at http://www.wipo.org/treaties/ip/
performances/performances.html (last visited Jan. 28, 2001).
n12. See generally
17 U.S.C.A. 106; see also U.S. Const., art. I, 8, cl. 8.
17 U.S.C.A. 106.
n14. See generally 1 Nimmer On
Copyright Ch. 2 (2000).
17 U.S.C.A. 102;
17 U.S.C.A. 114.
n16. See David N. Weiskopf, The Risks of
Copyright Infringement on the Internet: A Practitioner's Guide,
33 U.S.F. L. Rev. 1, at 9-10. (1998).
n17. See Statutory Enactments Contained in Title 17 of the United States Code,
available at http://www.loc.gov/copyright/title17/circ92.html#preface (last visited Jan. 28, 2001). A partial list
includes: Pub. L. No. 96-517, 94 Stat. 3015, 3028 (amending 101 and 117, Title
17, United States Code, regarding computer programs), enacted December 12,
1980, Pub. L. No. 100-617, 102 Stat. 3194 (extending for an additional
eight-year period certain provisions of Title 17, United States Code, relating
to the rental of sound recordings and for other purposes), enacted November 5,
1988, Audio Home Recording Act of 1992, Pub. L. No. 102-563, 106 Stat. 4237
(amending Title 17 of the United States Code by adding a new chapter 10),
enacted October 28, 1992, No Electronic Theft (NET) Act, Pub. L. No. 105-147,
111 Stat. 2678, enacted December 16, 1997, Digital Millennium
Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860, 2887 (Title IV amending 108, 112,
114, chapter 7 and chapter 8, Title 17, United States Code), enacted October
n18. See Digital Performance Right in Sound Recordings Act, Pub. L. No. 104-39, 109
Stat. 336 (1995) (codified at
17 U.S.C. 106(6), 114).
n19. The public performance right granted by the DPRSA extends to owners of sound
recordings when the recordings are digitally performed by either a subscription
transmission or a transmission by an interactive service, but not by
transmission via a non-subscription broadcast service.
n20. See The Digital Millennium
17 U.S.C. 1201 (1998).
n21. See Jon A. Baumgarten et al., New Year Details Ownership Rights on the
Internet: The Year-Old Digital Millennium
Copyright Act Leaves Little Room for Judicial Interpretation, Nat'l L.J. (Oct. 25, 1999)
available at http://test01.ljextra.com/na.archive.html/99/10/1999 1018 80.html
(last visited Jan. 28, 2001).
17 U.S.C. 1201-05 (1999).
n23. See infra note 164.
17 U.S.C. 512 (1998).
n25. This portion of the DMCA is the
"safe harbor" provision that exempts service providers from liability for unauthorized
copyright infringement. To be eligible, the service provider must not know of or
initiate the infringement, must not derive any financial benefit from the
unauthorized use and must take certain actions to prevent infringement on their
servers when notified of such activity.
n26. An Internet Service Provider or
"ISP" as it is commonly referred to is any provider of access to the Internet and
the World Wide Web. This can be a service provided for private individuals or
business customers. The ISP generally has a large network of computer servers
that are connected to the backbone of the internet. Metaphorically, an ISP is
"on-ramp" to the on-line super-highway. In most cases, ISPs provide extra services such
as Email and News Groups and sometimes their own content as well. ISPs provide
connectivity to their customers through dial-up connections using the
customer's own computer, modem and phone line or over dedicated lines that are
established by local telephone companies.
n27. See discussion of Napster's defense at 22,23.
n28. See Eric J. Schwartz, Jon A. Baumgarten et al,
Copyright and the Internet: A Primer on Domestic and International Issues, available at
general (last visited Jan. 28, 2001).
n29. See id. A foreign work is generally eligible for the same amount of protection
as a similar local work. As a result the applicable law to determine the scope
of protection for a foreign work is the law of the country where protection is
n30. See id.
n31. See Berne Convention for the Protection of Literary and Artistic Works,
available at http://www.wipo.org/treaties/ip/berne/berne01.html (last visited
Jan. 28, 2001).
n32. This minimum level is known as
n33. See The Agreement on Trade-Related Aspects of Intellectual Property Rights
(1996), available at http://www.wto.org/english/tratop e/trips e/t agm0 e.htm
(last visited Jan. 28, 2001). The TRIPS agreement provides for minimum levels
of enforcement that must be available in WTO countries for them to meet their
WTO obligations and avoid possible trade sanctions under the WTO's dispute
n34. See Convention for the Protection of Producers of Phonograms Against
Unauthorized Duplication of their Phonograms, available at
http://www.wipo.org/treaties/ip/geneva/geneva.html (last visited Jan. 28,
2001). This treaty establishes minimum
copyright protection criteria for sound recordings or phonograms.
n35. See The Rome Convention for the Protection of Performers, Producers of
Phonograms and Broadcasting Organizations, available at
http://www.wipo.org/treaties/ip/rome/rome.html (last visited Jan. 28, 2001).
This treaty establishes rules for performances, sound recordings/phonograms and
for broadcasts. The U.S. is not a party to the Rome Convention.
n36. See WIPO
Copyright Treaty (1996), available at http://www.wipo.org/treaties/ip/copyright/copyright.html (last visited Jan. 28, 2001), WIPO Performances and Phonograms Treaty
(WPPT) (1996), available at
http://www.wipo.org/treaties/ip/performances/performances.html (last visited
Jan. 28, 2001). These treaties clarify and extend protection offered under the
Berne and TRIPS treaties but, most significantly, allow
copyright owners to use encryption technology to protect their rights and make breaking
the encryption by others illegal. Both treaties were ratified by the required
thirty countries by early 2002 the WIPO
Copyright Treaty goes into effect March 6, 2002 and the WPPT goes into effect on May 20,
n37. The Berne Convention, however, does not cover sound recordings primarily due
to the fact that, unlike the United States, many countries do not believe that
sound recordings are works of sufficient originality. See
Copyright: Cases and Materials 851 (5th ed. 1999).
n38. The US Department of Defense developed the Internet in the 1960's for
experimental use by the military. It is an international network of computer
networks that communicate through various protocols. The Internet is not owned
by any particular entity. Anyone with a computer, modem, web browser and
Internet connection can access the Internet. As of January 2001 there were over
4 million websites and over 80 million unique Internet users in the US alone
according to the Internet statistics leader Media Metrix.
n39. See Matt Richtel, Survey Shows Overseas Use of Napster Outstrips U.S., N.Y.
Times, Apr. 5, 2001, at C4. In February 2001, 26 million people downloaded
songs through the Napster system with 8.5 million people accessing the service
n40. As one indication of this, in late 2000 the term
"sex" as the most frequently searched word on the Internet according to Media
n41. There were an estimated 500 million songs downloaded from mid 1999 through mid
2000 alone according to the Media Metrix Plug In Report: Fact and Perspectives
on the Music Player Market (July 2000), available at
http://us.mediametrix.com/data/jupitermediametrix.pdf (last visited Jan. 29,
2000). The important distinction between streaming and downloading music files
over the Internet is that streaming music is simply a performance of the music
whereby it passes through the users computer and the music is never left on the
users hard drive. A copy is never created. When a song is downloaded, a
digitally cloned copy of the file is transferred to the users hard drive.
Digital compression decreases the size of the file without significantly
impacting the quality of the music such that would be large files can be
quickly and easily transferred over the internet.
n42. In fact, as of November 2000, all of the major music companies had deployed or
would soon deploy digital distribution programs. Most of them include the
release of a small number of albums and a larger number of
"singles" available for commercial download at various retail sites and portals on the
Internet. The industry viewed these programs as
"tests" and to date the consumer experience has proven to be far more cumbersome and
far less popular than Napster. As of Early April 2001, the record labels
announced their next steps, which include subscription services, see discussion
infra at p. 237.
"MP3" stands for Motion Picture Experts Group or MPEG-1 Audio Layer 3. It is a
compression technology. See http://www.mpeg.org for additional information.
n44. See id.
n45. Ripping is the process of removing files from one format such as a CD and
encoding them in another such as an MP3 file.
n46. See discussion of direct
copyright infringement infra at p. 213.
n47. Some of the most popular
free software applications used for recording and playing MP3's include Nullsoft's WinAmp
Player, Microsoft's Windows Media Player, Real Network's Real Audio Jukebox and
the MusicMatch player. Essentially these applications act as a desktop digital
recorder, player and database where a user can record, catalog and listen to
hours of MP3's in their own computer
n48. See Alan Zeichick, P2P Networks Explained, Red Herring, Dec. 4, 2000.
n49. See id.
n50. See id.
n51. Currently there are hundreds of peer to peer websites offering peer to peer
file sharing of music, books, movies and other multimedia files. Some examples
include: Gnutella, I-Mesh, Flycode, Angry Coffee, Onshare.com, LightShare.com
n52. See Zeichick, supra note 48.
n53. See id.
n54. See Colin Beavan, Lock Up Your Content, Inside, Dec. 12, 2000, at 74.
n55. There are several digital rights management technologies currently in use,
including the Microsoft's popular Windows Media Player DRM, as well as
technologies developed by companies such as Reciprocal, Intertrust and many
others. Although Digital rights management technology is critical to a solution
for secure digital music files, in the wake of the downturn in the
"internet economy" of 2001, many of the companies that developed the technology have folded or
suffered including both Reciprocal and Intertrust.
n56. See Media Metrix Plug In Report: Fact and Perspectives on the Music Player
Market (July 2000), available at
http://us.mediametrix.com/data/jupitermediametrix.pdf (last visited Jan. 29,
n57. Portable devices are similar to portable cassette or CD players, but instead
play MP3 files that can be transferred from a users' computer to the particular
device and then enjoyed wherever the user chooses. Some popular brands
currently include the Rio Riot, the Nomad, Sony's Memory Stick, and the very
popular Apple i-Pod.
n58. Companies such as Verance, Liquid Audio and others have developed their own
proprietary watermarking technologies and are currently the most widely used by
the music industry. Generally, watermarking encodes inaudible audio bits into
the music file that identify the file. It is imperceptible to the listener but
can be detected by a DRM loaded on a computer.
n59. At this point, the phrase
"digital files that are already in the marketplace" dauntingly encompasses nearly all audio tracks currently available on CD which
is in essence the history of recorded music to date.
n60. These include Intertrust's
"Digibox" and other
"digital wallet" technologies. These type of technologies lock the copyrighted content in a
"virtual" box and sets specific rules as to how and by whom the content can be accessed
depending on how much the user paid to access the content. The content may be
accessible for an hour, a day, a week or indefinitely depending on the business
rules set by the
copyright holder. The user gets a
"digital key" which is tied to their hard drive so that only that individual user may unlock
the content on their computer. If the file is transferred to another hard drive
via download or other method, the file will be useless without the key.
n61. Hardware includes personal computers, portable MP3 players, cell phones and
other wireless devices. The music industry created the Secure Digital Music
Initiative (SDMI) to develop hardware that has standard
copyright protection features. SDMI was a consortium of over 120 organizations of
international electronics and music companies with the goal of developing a
voluntary, open framework technology for standard
copyright protection on all hardware capable of playing digital music. The group
ultimately had little impact on the proliferation of unprotected music through
the Internet and disbanded in 2001. While many portable devices are now
"SDMI compliant" most still allow a user to play non-SDMI protected files.
n62. Software includes audio CD's and unsecured MP3 files.
n63. The consumer will often be cut off from copyrighted materials that they
previously had access to after their license for use has expired. When a person
currently purchases a CD, they may play it as often as they like in whatever CD
players they wish. Consumers are used to the idea of doing what the like with
music once they have purchased it and
"own" it. It will be difficult for consumers to get used to the idea of limiting the
uses of music after they have control over the file for a certain amount of
time, but they may have to get used to a more limited idea of fair use.
n64. See John Heilemann, David Boies: The Wired Interview, Wired Magazine, Sept.
17 U.S.C. 501(a).
n66. See Heilemann, supra note 64.
17 U.S.C. 107. This doctrine was originally developed as a policy consideration in case law.
It was specifically codified in the 1976 Act. Fair use is the most significant
and most venerable limitation on an author's
copyright prerogatives. The traditional concept of fair use excuses reasonable
unauthorized appropriations of a copyrighted work, when the use in some way
advanced the public benefit, without substantially impairing the present or
potential economic value of the copyrighted work. That being said, there is no
real definition of fair use. It is an equitable rule of reason and each case
raising a fair use defense must be decided on its own facts.
n68. See id.
n69. See id.
17 U.S.C. 107 lists the factors to be considered in determining fair use.
Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984). Justice Stevens noted that if Sony's copying was
"for a commercial or profit-making purpose, such use would presumptively be
n71. Even a 3-second song clip may not be considered fair use under certain
contexts. Thus, the context is critical to a fair use analysis.
n72. The major
"non-infringing" uses that Napster argued included the authorized use of copyrighted works by
new artists who benefited from the exposure, as well as
"time shifting," the principle
"fair use" defense upheld in the infamous Sony Corp. of America v. Universal City
Studios, Inc. case.
A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001).
n74. See id.
copyright infringement on the Internet, the usual
"entity" is an ISP.
n76. The classic explanation of the contributory infringement doctrine is explained
by Judge Anderson in
Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159 (2d Cir. 1971), where he stated
"one who, with knowledge of the infringing activity, induces, causes or
materially contributes to the infringing conduct of another, may be held liable
Copyright Act itself does not specifically mention
"contributory infringement," but as Justice Steven's explains in Sony at 435,
"the absence of such express language in the
copyright statute does not preclude the imposition of liability for
copyright infringements on certain parties who have not themselves engaged in the
infringing activity. For vicarious liability is imposed in virtually all areas
of the law, and the concept of contributory infringement is merely a species of
the broader problem of identifying the circumstances in which it is just to
hold one individual accountable for the actions of another."
A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001).
n79. See id.
n80. See id.
n81. See David N. Weiskopf, The Risks of
Copyright Infringement on the Internet: A Practitioner's Guide,
33 U.S.F. L. Rev. 1, at 8 (1998).
n82. See id.
A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001).
n84. See id.
17 U.S.C. 512 (1998).
A & M Records, 239 F.3d at 1025.
n87. See id.
n88. See id.
n89. See id. The court stated:
"Plaintiffs have raised and continue to raise significant questions under this
statute, including: (1) whether Napster is an Internet service provider as
17 U.S.C. 512(d); (2) whether
copyright owners must give a service provider
"official" notice of infringing activity in order for it to have knowledge or awareness
of infringing activity on its system; and (3) whether Napster complies with
512(i), which requires a service provider to timely establish a detailed
copyright compliance policy."
A & M Records, 239 F.3d at 1026.
n91. See John Heilemann, David Boies: The Wired Interview, Wired Magazine, Sept.
n92. See id.
A & M Records, 239 F.3d at 1027. In February 2002, the district court denied the RIAA's motion for summary
judgement and granted Napster more time for discovery on two issues seemingly
disposed of by the Court of Appeals ruling. Napster claims that many of the
titles that the music companies assert
copyrights in are not owned by them and that the music industry's conduct since the Court
of Appeals ruling lends credibility to their
copyright misuse argument. The district court agreed based on antitrust concerns raised
by the industry's own on-line music ventures MusicNet and Pressplay. The
district court stated,
"these ventures look bad, smell bad and sound bad. If Napster is correct these
plaintiff's are attempting near monopolization of the digital distribution
market." If Napster is successful in showing illegal collusion, they could invalidate
the music industry's lawsuit. See Matt Richtel, Napster Wins One Round in Music
Case: Judge Questions Tactics of Major Record Labels, N. Y. Times, Feb. 23,
2002, at C1.
n94. The international community adopted two new treaties in 1996 to bring
copyright protection into the digital age, the WIPO
Copyright Treaty (WCT) and the Performers and Phonograms Treaty (WPPT). The WPPT
provides protection against unauthorized reproduction, distribution, and rental
of recorded music. It requires the
copyright holder's consent to make sound recordings available over the Internet. In
addition, copying or hacking of technical measures to prevent unauthorized
copying is prohibited. Thirty countries must ratify the treaties for them to
enter into force. Both treaties were ratified in early 2002 and will go into
effect in signatory countries by mid-2002.
n95. See Curtis A. Bradley, Extraterritorial Application of U.S. Intellectual
Property Law: Territorial Intellectual Property Rights in an Age of Globalism,
37 Va. J. Int'l L. 505, 583 (1997).
n96. See Stephan Wilske and Teresa Schiller, International Jurisdiction in
Cyberspace: Which States May Regulate the Internet?,
50 Fed. Comm. L. J. 117, 139 (1997).
n97. See Brenda Tiffany Dieck, Reevaluating the Forum Non-Conveniens Doctrine in
Copyright Infringement Cases,
74 Wash. L. Rev. 127 (1999).
n98. See Andreas Reindl, Choosing Law in Cyberspace: Conflicts on Global Networks,
19 Mich. J. Int'l L. 799 (1998).
n99. See William S. Dodge, Understanding the Presumption Against
Extraterritoriality, 16 Berkeley J. Int'l L.85 (1998).
n100. See Bradley, supra note 95.
n101. See id; see also Marshall A. Leaffer, International Treaties On Intellectual
Property (2d ed. 1997).
n102. See Bradley, supra note 95.
n103. See Bradley, supra note 95. See, e.g.,
Subafilms, Ltd. v. MGM-Pathe Communications Co., 24 F.3d 1088, 1093 (9th Cir. 1994) (referring to the
"undisputed axiom that United States
copyright law has no extraterritorial application").
24 F.3d 1088 (9th Cir. 1994).
Subafilms, Ltd., 24 F.3d 1088. The court noted that
"there is no clear expression of congressional intent in either the 1976 Act or
other relevant enactments to alter the preexisting extraterritoriality doctrine." The court also warned that extraterritorial application of U.S. law could also
send a signal to other countries that the U.S. does not trust their enforcement
Peter Starr Prod. Co. v. Twin Continental Films, Inc., 783 F.2d 1440 (9th Cir. 1986).
Subafilms, Ltd., 24 F.3d 1088.
17 U.S.C. 501(a).
n109. See, e.g.,
Cable/Home Communication Corp. v. Network Prods., Inc., 902 F.2d 829, 845-46 (11th Cir. 1990);
Metzke v. May Dept. Stores Co., 878 F. Supp. 756, 760-61 (W.D. Pa. 1995).
n110. Outside of this specific exception, courts consider 3 factors to determine if
the presumption should not be applied: (1) whether there will be adverse
effects in the United States if the statute is applied extraterritorially, (2)
whether extraterritorial application of the law will result in international
discord and (3) whether the conduct sought to be regulated occurs largely
within the United States.
n111. Granted, the United States is the largest music market in the world so Napster
without the U.S. is certainly less attractive economically to its developers,
but the music market outside the U.S. is still quite significant and would
potentially present a similar negative impact on sales that the RIAA alleged in
& M Records, Inc. v. Napster, Inc. suit.
n112. See Wilske
& Schiller, supra note 96.
n113. See, e.g.,Pennoyer v. Neff, 95 U.S. 714, 722 (1878);
International Shoe Co. v. State of Washington, 326 U.S. 310, 316 (1945);
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980);
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476-77 (1985);
Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102 (1987). These are the cornerstones of a line of U.S. Supreme Court cases that
"minimum contacts test." The basic policy behind the test is that due process requires a defendant to
be subject to a distant court's judgment only if he or she has minimum contacts
with the jurisdiction such that exercising jurisdiction does not offend
"traditional notions of fair play and substantial justice." The contacts must be
"continuous and systematic" whereby the defendant
"purposefully availed themselves of the benefits and protections of the laws of
the forum state." In addition, the defendant must
"know or reasonably anticipate" that their activities could give rise to litigation and the contacts must
actually give rise to the litigation. Finally, it is not enough for the minimum
contacts to exist, jurisdiction must ultimately be
"reasonable" under the circumstances balancing the litigant's interests against the forum's
Hanson v. Denckla, 357 U.S. 235 (1958).
Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102 (1987).
939 F. Supp. 1032 (S.D.N.Y. 1996).
n117. The court stated:
"The Internet is a world-wide phenomenon, accessible from every corner of the
globe. [Defendant] cannot be prohibited from operating its Internet site merely
because the site is accessible from within one country in which its product is
banned. To hold otherwise
"would be tantamount to a declaration that this Court, and every other court
throughout the world, may assert jurisdiction over all information providers on
the global World Wide Web."
Playboy Enterprises, 939 F. Supp. 1032.
n119. See supra note 115.
n120. See Wilske
& Schiller, supra note 96; see also Andrew E. Costa, Comment, Minimum Contacts
in Cyberspace: A Taxonomy of the Case Law,
35 Hous. L. Rev. 453, 502 (1988).
Zippo Mfg. Co. v. Zippo Dot Com Inc., 952 F. Supp. 1119 (W.D. Pa. 1997).
n122. The answer to this question will be answered shortly by the RIAA's latest
lawsuit brought in U.S. District Court for the Central District of California
against three file sharing services that arose following Napster's shut down.
One of the services, known as KaZazA, is a Dutch company based out of Amsterdam
and another called Grokster is based out of the West Indies. Subsequent to the
October 2001 suit, KaZazA was then sold to an Australian firm in January 2002.
As of March 2002, both KaZazA and Grokster are still defendants in the suit and
no motion to dismiss due to lack of jurisdiction by the U.S. court has been
filed. For more see infra note 167.
n123. See Brenda Tiffany Dieck, Reevaluating the Forum Non-Conveniens Doctrine in
Copyright Infringement Cases,
74 Wash. L. Rev. 127at 127 (1999). Dieck describes the doctrine as
"a judicially created doctrine that allows the judge, at her discretion, to
dismiss a case on grounds of convenience to the parties and the court ... when
the more convenient forum is outside the federal system."
n124. See id.
n125. The leading case on the doctrine is
Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981). The U.S. Supreme Court created the forum non-conveniens test that must be
applied in international cases in the Piper decision. The Court used a two step
analysis, first determining whether an adequate alternative forum exists and if
one does exist, then balancing a series of interests.
n126. See Dieck, supra note 123.
n127. See Andreas Reindl, Choosing Law in Cyberspace: Conflicts on Global Networks,
19 Mich. J. Int'l L. 799 (1998).
n128. See id.
n129. See id.
n130. See John Heilemann, David Boies: The Wired Interview, Wired Magazine, Sept.
2000. In response to the idea that new file sharing technologies may be
ungovernable, David Boies Napster's lead attorney stated,
"I think that's very possible and if it happens, it will have a lot to do with
the fact that we live in a world where laws are made by nation-states, but the
internet is worldwide."
n131. See http://freenet.sourceforge.net/.
n132. See The Freenet FAQ: What is Freenet?, available at
http://freenet.sourceforge.net/index.php?page=faq (last visited Jan. 29, 2001).
n133. See id.
n134. See id. Open Protocol or open source is an internet technology that developers
intentionally make freely available for public use without the requirement of
licensing fees. This allows other developers to manipulate another's code and
transform it for other uses or functionality.
n135. See The Freenet FAQ: Why is Freenet Interesting? available at
http://freenet.sourceforge.net/index.php?page=faq (last visited Jan. 29, 2001).
A & M Records, 239 F.3d at 1027."Napster may be vicariously liable when it fails to affirmatively use its
ability to patrol its system and preclude access to potentially infringing
files listed in its search index. Napster has both the ability to use its
search function to identify infringing musical recordings and the right to bar
participation of users."
n137. See Declan McCullagh, Good Gnus in Napster Ruling (Feb. 14, 2001), available
at http://www.wired.com/news/print/0,1294,41784,00.html (last visited Apr. 14,
2001). Lack of the ability to monitor may be
"a legal opening for file-swapping services such as Gnutella and Freenet, which
are set up in a way that prevents their creators from easily patrolling the
network and deleting MP3 files at the behest of the Recording Industry
Association of America's member firms."
n138. Richard Koman, Free Radical: Ian Clarke Has Big Plans For The Internet (Nov.
14, 2000), available at http://www.oreillynet.com/pub/a/p2p/2000/11/14/ian.html
(last visited Jan. 29, 2001). According to Clarke,
"one of the things that Freenet does is it actually moves information around and
dynamically replicates information to reduce the load on the network bandwidth.
So, if 1,000 people in the U.K. request the same document from the U.S. and
they were using Freenet, it would only need to travel over the Atlantic once,
and thereafter it would be stored locally and distributed within the U.K. - or
within Europe, depending on where the demand was."
n139. See John Heilemann, David Boies: The Wired Interview, Wired Magazine, Sept.
2000. According to Boies shutting down Napster will likely,
"drive the peer-to-peer central index technology offshore, or to Canada. And
because it is noncommercial, once they set up in Canada, there isn't anything
you can do in the United States. If they were selling subscriptions in the
United States, you could stop it. If they were charging people, you could stop
it. If they were soliciting people, you could stop it. But the thing about this
is, you don't need to solicit people. They'll just dial up that Canadian
address all by themselves. There really is nothing you can do to stop it."
n140. As of late 2001, several file sharing services began to fill the gap left by
the Napster's closure. The most significant include: Morpheus (2.5 million
users), KaZazA (1.5 million users), Audio Galaxy (1.5 million users), Aimster
(1 million users), iMesh (1 million users) and Gnutella based systems
Limewire/Bearshare (1 million users). Clearly, shutting down Napster or one
file sharing network is not the solution to end mass
copyright infringement on the internet.
n141. See The Freenet FAQ: But I'm still worried about terrorism / child pornography
/ libel /
copyright infringement formerly, available at
http://freenet.sourceforge.net/index.php?page=faq (last visited Jan. 29, 2001).
n142. See The Freenet FAQ: Won't Freenet be a Haven for Pirates and Criminals?
formerly available at http://freenet.sourceforge.net/index.php?page=faq (last
visited Jan. 29, 2001). According to the former site:
"the network doesn't know the difference between public domain documents like a
Shakespeare sonnet or Bach fugue, and copyrighted works like a Stephen King
novel or Carlos Santana song. Because it makes sharing the former easier, it
also makes sharing latter easier. This is perceived as a threat to traditional
publishing and recording industries just as radio was, and the mimeograph, and
television, and the photocopier, and magnetic tape, and the compact disc, and
the videocassette recorder, and many other technologies that made sharing
information easier. Freenet doesn't do anything different from what can already
be done with those technologies, it just does it more efficiently. Artists and
publishers all adapted to those new technologies and learned how to use them
and profit from them; they will adapt to Freenet as well."
A & M Records, Inc. v. Napster, Inc., 114 F. Supp. 2d 896 (N.D.Cal. 2000).
n144. See The Philosophy Behind Freenet, available at
visited Apr. 14, 2001).
n145. See Colin Beavan, Lock Up Your Content, Inside, Dec. 12, 2000, at 73.
"Freenet would scare the bejesus out of the music industry - except you need to
be a virtual MIT egghead to work [it]."
n146. Aimster is now known as Madster. AOL brought a complaint against Aimster
claiming that they infringed the trademark for AOL's instant messaging system
AIM. A National Arbitration Forum panel ruled in May 2001 that Aimster must
relinquish its domain name to America Online (AOL). Aimster appealed the ruling
in court, but ultimately gave up the name under a settlement with AOL and
changed their name to Madster.
n147. See Beavan, supra note 145, at 73.
n148. Instant Messaging (IM) allows one user to communicate directly with another in
real time using text messages over the Internet.
n149. See Beavan, supra note 145, at 72.
"buddy" is an IM user selected by another IM user to have access to their instant
message system. Buddies are identified by a unique screen name and the screen
name is placed in an IM users'
"buddy list." The IM application will detect whenever a users' buddies are on-line using the
IM system and automatically notify any other users who have that buddy on their
n151. See id.
n152. See id.
n153. See id.
"Frank Creighton, the RIAA's senior vice president and director of anti-piracy,
says that while Aimster 'isn't less harmful or wrong' than using Napster, he
allows that 'it is more akin to the days when kids would make compilation tapes
and trade them with dorm buddies. It's more like a Phish fan saying, 'I made
you this tape. Now I want you to go out and buy the album.'"
n154. A plug-in is usually a small piece of software that adds features to a larger
piece of software. Common examples are plug-ins for web browsers. The idea
behind plug-in's is that a small piece of software is loaded into memory by the
larger program, adding a new feature to the larger application. The user need
only install the few plug-ins that they need, out of a much larger pool of
possibilities, to get custom functionality. Plug-ins are usually created by
people other than the publishers of the software the plug-in works with.
n155. See Beavan, supra note 145, at 72. According to Johnny Deep,
"Aimster clearly has non-copyright-infringing uses, and he can't help it if public-domain programmers release
plug-ins that allow the promiscuous swapping of copyrighted files."
n156. See id.
n157. See id.
n158. See id.
n159. See id. Legal experts cautiously concur with this idea.
"I think the Aimster technology has substantial non-infringing uses," says Julie Cohen, an associate professor of Internet
copyright law at the Georgetown University Law Center. Mark Radcliffe, a Palo Alto-based
copyright attorney, views Aimster's chances in a post-Napster universe as positive too.
"I could foresee a situation where the court rules against Napster, but the
judgment is written in such a way that it doesn't affect technologies such as
n160. In response to a suit brought by Aimster for a declaratory judgement that
their service is legal, the RIAA filed a lawsuit against Aimster in the U.S.
District Court for the Southern District of New York in May 2001. The RIAA
"Aimster provides the same functions as Napster" and
"the experience is virtually identical in terms of being able to search the
[Aimster] network for other peoples' music." In addition, the RIAA asserts that
"the evidence will show that Aimster was as aware as Napster that it was
facilitating widespread infringement." See Matt Richtel, Aimster Heads Down a Path Already Taken by Napster: But
Music Industry Victory is Not So Certain, N. Y. Times, June 1, 2001, at C1.
n161. A technology may be exempt from contributory
copyright infringement liability if it has
"substantial non-infringing uses." See
Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984).
n162. David Boise represents both Napster and Aimster in their suits against the
n163. See Brad King, Napster Clone's Curious Terms (Mar. 2, 2001), available at
http://www.wired.com/news/print/0,1294,42105,00.html (last visited Apr. 14,
n164. See id.
"Breaking the encryption is illegal under the DMCA because the network and its
programming code are copyrighted." See supra notes 22, 23.
n165. See id.
n166. See id.
n167. Both Gnutella and FastTrack are two file sharing technologies that rose to
prominence after Napster voluntarily shut down in July 2001. Unlike Napster,
Gnutella does not use a central server to keep track of user files. It is a
completely decentralized peer-to-peer file transfer network with a shared file
directory. As such, it is generally disorganized and inefficient. Gnutella is
based on an open source code and is developed by independent volunteer
programmers throughout the world. These programmers have started GPulp, which
stands for General Purpose Location Protocol, a program that would standardize
the music-swapping program and make it much easier to use. Developers are
constantly working to improve Gnutella's basic code and the technology is
getting better. Since no central entity or computers are involved, a Gnutella
based network is essentially impossible to shut down without removing the
individual computers from the network. Various file sharing communities
including Limewire, Bearshare and Morpheus now use the Gnutella technology. For
more on Gnutella, see Understanding Peer-to-Peer Networking and Modern
Peer-to-Peer File Sharing over the Internet, available at
http://www.limewire.com/index.jsp/p2p (last visited Mar. 14, 2002).
FastTrack was developed in Holland. It differs from Gnutella in that it uses a
new peer-to-peer structure that includes
"supernodes." A supernode is essentially a powerful peer computer within the network that is
used as a centralized index of files for a specific branch of the network. The
supernodes can communicate among themselves as well and pass search requests
between different branches of the network. FastTrack chooses which computers
are supernodes and can do so without the knowledge of the user. Generally, the
more bandwidth available to a peer the more likely it will be chosen as a
supernode. The supernodes are not centralized and therefore are not under the
control of FastTrack. Once a supernode helps the user find another peer with
the desired file, the file transfer takes place directly through the two peers
and does not pass through the supernode. FastTrack technology is used by file
sharing networks including KaZazA and Grokster. For more on FastTrack, see
Morpheus Out of the Underworld, The O'Reilly Network (July 2, 2001), available
at http://www.openp2p.com/lpt/a/p2p/2001/07/02/morpheus.html (last visited Mar.
As of October 2001, the RIAA brought a lawsuit against KaZaza, Morpheus and
Grokster. Since these P2P networks are operated by a series of individuals, not
by a central Web site or company, the only way to shut such networks down is
one user at a time. Because those users can be anywhere in the world, that's a
near-impossible task. The outcome of this suit will likely answer some of the
critical questions posed by the current
"copyright crisis," but the question of how a potential injunction will be enforced still remains.
n168. Many believe that the idea of
copyright is outmoded and that the current laws do not apply anymore. This idea was
expressed by Freenet's Ian Clarke in the statement,
"I do believe that through technology, the freedom to communicate can be
guaranteed. It's certainly possible that Freenet could be banned. The question
is whether that's enforceable." See Karlin Lillington, Why
Copyright Laws Hurt Culture (Nov. 27, 2001), available at
http://www.wired.com/news/print/0,1294,48625,00.html (last visited Mar. 13,
n169. The most contentious issues for those calling for a revision of the DMCA are
the lack of a digital
"first sale" doctrine and the lack of exemptions for temporary
"incidental" copies and
"back up" copies of creative works. The traditional first sale doctrine in
copyright law allows a consumer to redistribute a copyrighted work that they have
legally purchased. In August 2001, the U.S.
Copyright office released a report to Congress finding that a digital first sale
doctrine could hurt the market for original material. The
Copyright office did recommend, however, that an incidental copy of a work made in the
course of streaming is a legal fair use and that the DMCA be amended to allow
for lawful backup copies of digital files. See Bill Holland,
Copyright Office Proposes Key Changes To DMCA, Billboard Bulletin, Aug.t 30, 2001.
n170. gigalaw.com describes itself as:
"an online resource for technology professionals and the lawyers that serve them."
n171. See Declan McCullagh, Good Gnus in Napster Ruling (Feb. 14, 2001), available
at http://www.wired.com/news/print/0,1294,41784,00.html (last visited Apr. 14,
n172. See supra note 161.
n173. The policy of creative innovation is a core constitutional value of
copyright under Article I, 8,
"To promote the Progress of Science and useful Arts."
n174. Article I, 8 of the Constitution also grants a limited property right in an
author's creative expression,
"by securing for limited Times to Authors and Inventors the exclusive Right to
their respective Writings and Discoveries."
n175. Copy protection cannot completely prevent unauthorized copying of music.
According to Princeton professor and encryption expert Edward Felten,
"none of [the anti-copy technologies] prevent unauthorized distribution. All
they do, at best, is make it more difficult, more time consuming to copy
things. You are not putting up a barrier to prevent copying but a speed bump
that will frustrate people who want to copy illegally." See Patricia O'Connell, A
"Speed Bump" vs. Music Copying Master cryptographer - and Code Ccracker - Edward Felten
Says Technology isn't the Answer to Digital
Copyright Violations (Jan. 9, 2002), available at
http://www.businessweek.com/bwdaily/dnflash/jan2002/nf2002019 7170.htm (last
visited Mar. 15, 2002).
n176. Anti-Copy technology exploits the differences between the way audio CD players
and computer CD-ROM drives read the information on discs and essentially
confuses CD-ROM drives into not reading the disc. For a detailed discussion of
this, See Charles C. Mann, First 'Napster-proof' CD Set to Burn: Country Star
Charley Pride Takes Lead with Controversial Technology, Inside, Mar. 27, 2001.
n177. Congressman Rick Boucher of Virginia believes that record companies are
"seeking to use their
copyright not just to obtain fair compensation but in effect to exercise complete
dominance and total control of the copyrighted work." See Amy Harmon, CD Technology Stops Copies, But It Starts A Controversy, N. Y.
Times, Mar. 1, 2002, at C1.
n178. South Carolina Senator Fritz Hollings has introduced legislation to Congress
called the Security Systems Standards and Certification Act which prohibits the
creation, sale or distribution of
"any interactive digital device that does not include and utilize certified
security technologies." Those opposing the legislation say that the standards are too interventionist,
favor certain software brands over others and could become quickly obsolete as
technology develops. Many agree that a solution must be found but legislative
regulation may not be the answer. See Declan McCullagh and Robert Zarate, House
Cool To Copy Protection (Mar. 4, 2002), available at
http://www.wired.com/news/print/0,1294,50784,00.html (last visited Mar. 13,
n179. The music industry is indeed working toward a more sophisticated form of copy
protection. See Amy Harmon, CD Technology Stops Copies, But It Starts A
Controversy, N. Y. Times, Mar. 1, 2002, at C1.
n180. The subject of anti-copy counter measures could fill an entire law review
journal by itself. There is only limited discussion of the topic here as to its
contribution to a possible solution of on-line
n181. See Bill Holland, Govt., Tech Critics Decry RIAA Tactics (Nov. 3, 2001),
available at http://www.billboard.com (last visited Mar. 14, 2002).
n182. See id.
n183. See id.
n184. See Bill Holland, Govt., Tech Critics Decry RIAA Tactics (Nov. 3, 2001),
available at http://www.billboard.com (last visited Ma. 14, 2002); Almar
Latour, Beating Napster at Its Own Game? (Nov. 12, 2000), available at
http://www.zdnet.com/zdnn/stories/news/0,4586,2652781,00.html (last visited
Mar. 14, 2002).
n185. A partial list of laws that may be implicated by anti-piracy measures include
the Electronic Communications Privacy Act
18 U.S.C. 2510, the Stored Communications Act
18 U.S.C. 2701, the Computer Fraud
& Abuse Act
18 U.S.C. 1030, the Federal Trade Commission Act
15 U.S.C. 45.
n186. The RIAA's general counsel Cary Sherman stated
"it is clear that any such measures will be lawful and will constitute a very
modest response to a very serious problem." But others
"are concerned that the technology amounts to blocking - a so-called denial of
service - which is illegal." See Bill Holland, Govt., Tech Critics Decry RIAA Tactics (Nov. 3, 2001),
available at http://www.billboard.com (last visited Mar. 14, 2002).
"Many users of Napster and comparable networks are also active buyers of music
at record stores. Shutting their networks down or slowing electronic traffic by
tricking people into opening spoof files might not go down well."
"It would shut a network down in a hurry. But it could backfire, irritate the
user and damage the reputation of the record company or recording artist
involved." See Almar Latour, Beating Napster at Its Own Game?, (Nov. 12, 2000), available
at http://www.zdnet.com/zdnn/stories/news/0,4586,2652781,00.html (last visited
Mar. 14, 2002).
n188. See supra note 93.
n189. MusicNet's technology was principally developed by Real Networks and AOL and
is backed by BMG, Warner Brothers, EMI and others. Pressplay's technology was
developed principally by Microsoft and is backed Universal and Sony.
n190. Besides the industry created MusicNet and Pressplay other subscription
services currently available or about to launch include: a remade Napster,
Listen.com's Rhapsody subscription service and Full Audio's subscription
service backed by the radio group Clear Channel.
n191. For one of many press critiques, see Walter S. Mossberg, Record Labels Launch
Two Feeble Services To Replace Napster, Wall St. J., Feb. 19, 2002, at B1.
Prepared: July 3, 2003 - 5:02:29 PM
Edited and Updated, July 4, 2003
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