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[FYI] (Fwd) Article: The Napster Case: Shed the Baggage and Move On
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- Date: Fri, 28 Jul 2000 16:58:49 +0000
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Date sent: Fri, 28 Jul 2000 10:20:08 -0400 (EDT)
From: Andy Oram <andyo@oreilly.com>
Subject: Article: The Napster Case: Shed the Baggage and Move On
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http://www.webreview.com/pub/2000/07/28/platform/index.html
[44]Platform Independent
___________________________________________________________________
____
The Napster Case: Shed the Baggage and Move On
by [45]Andy Oram
July 28, 2000
A lot of heavy metal will soon leach out of campus networks when
the injunction against Napster goes into effect. But even people
who were thankful when headsets replaced boom boxes are worried
about the ruling against this innovative service.
It may make us feel better if we try to distinguish technology from
services. I certainly hope the courts do so. We are informed by
Judge Patel that Sean Fanning's particular site Napster.com was
using his technology in a way that fit the accusation of vicarious
and contributory infringement. It is thus my expectation--which I
cannot confirm because I have not seen the text of the
injunction--that she recognizes there are other uses for that
technology that aren't subject to prosecution.
A More Important Precedent?
In making the technology-versus-service distinction, one can't help
thinking of another copyright case that is currently also reaching
a climax: DeCSS. This is simply an Open Source application for
decoding the format of DVDs. It has been attacked ferociously--to
the point where the judge ordered sites to take down links that
pointed to DeCSS sites--on a number of grounds, including its
potential use in software that can make unauthorized copies of
DVDs. Open Source and Internet sites such as the [46]OpenDVD Group
and [47]2600 have made a strong advocacy effort.
Technologists and Internet activists are encouraged by reports that
the judge in the DeCSS case may soon rule that the software is
legal on First Amendment grounds. But it is still too early to tell
how the DeCSS case will come out, or what its effect will be on the
controversial "circumvention of technological measures" clause in
the 1998 Copyright Act, which underlies many current challenges to
new technologies.
Implications for Now
Judge Patel's preliminary injunction against Napster neither
surprised nor particularly perturbed me. I have been listening to
lawyers talk for several months about the Napster case--lawyers
with a respect for technological innovation and free speech,
lawyers who criticize other heavy-handed attempts at control by
content providers--and they have tended to say that Napster doesn't
stand much of a chance in court. It's hard to ignore that over 90%
(maybe close to 100%) of Napster downloads take place without the
approval of the copyright owner. A site that urges readers to share
MP3 files cannot protect itself through a fig-leaf warning against
copyright infringement.
The precedents concerning vicarious and contributory infringement
are pretty solid. Suppose you own an exhibition hall and rent space
to flea markets. Suppose that one of your 400 exhibitors sells
pirated videos or music CDs. You can be successfully sued for
copyright infringement, and it does you no good to claim, "The same
space could have been used to sell Hummel figurines!" Part of the
criteria for vicarious infringement include whether you make an
indirect profit from infringement (as you would in this case, as a
landlord renting space). But even a non-commercial Napster site
would be vulnerable.
Napster's brave [48]rebuttal was a tour de force, but they failed
to persuade me that exchanging files with thousands of strangers
around the world was covered by the "fair use" provisions of
copyright law.
Implications for the Future
Sean Fanning will definitely find a use somewhere for his talents.
In fact, he may not even have to shut down Napster, if he can find
a way to block the transfer of the particular materials copyrighted
by the plaintiffs in the case. The trick the plaintiffs
played--aside from that being a whole lot of songs--is that you
can't really tell what's infringing; you can only guess from the
file name or sit down and listen to the song.
Meanwhile, exchanges of MP3 files will continue, just as they have
long before Napster ever went online. All the recording companies
have really accomplished is to broadcast an announcement that
they'll aggressively prosecute anything that has a familiar sound,
a threat their audience isn't likely to buy.
What concerns civil libertarians and technologists is whether this
court case attacks technological innovation itself. I raised this
concern back in March of this year, writing in a [49]comment to the
U.S. Copyright Office:
Napster is simply a combination of a directory service (a kind of
software distributed by such major corporations as Microsoft,
Netscape, and Novell) and a file transfer protocol (a kind of
software that was the first application ever invented on the
Internet; even the World Wide Web is based on an HTTP, a file
transfer protocol of moderate sophistication). A challenge to
Napster, based simply on the proclivity of its users to breach
copyright, is a challenge to the basic technologies on which the
Internet is based. Almost any Internet protocol and product, new
or old, could be used for copyright violations.
Many others, such as Lawrence Lessig in a carefully argued
[50]testimony in the Napster case, have made this point and added
several others. Lessig applies three tests defined by the Supreme
Court for determining whether Internet technology should be
restricted, and shows that Napster should be protected under all
three tests:
1. It has "substantial noninfringing uses."
2. Copyright holders could use "self-help" measures to prevent
infringing uses.
3. The remedy (shutting down Napster.com) is ineffective, because
many
other technologies will spring up to permit the circulation of
unauthorized copies.
The "self-help" measures cited by Professor Lessig include trusted
systems, watermarks, and copy restrictions. These may not yet be
proven technologies, but as I suggested in an [51]earlier Web
Review article , an even easier way exists to discourage people
from exchanging anonymous music and videos: flood the Internet with
damaged and bogus files.
As Internet users and proponents of technological innovation,
therefore, our mission now is to ensure that the message is not
lost even if the messenger is shot. Napster may well be engaging in
illegal behavior. But there is no reason to ban the Napster
protocol, or the software that implements that protocol, or the
many other types of technologies (like [52]Gnutella, [53]Freenet,
and [54]Publius) that hold great promise for distributed processing
and human interaction.
_________________________________________________________________
_
Andy Oram [55]andyo@oreilly.com, is an editor at O'Reilly &
Associates and moderator of the Cyber Rights mailing list for
Computer Professionals for Social Responsibility. This article
represents his views only. This article can be reposted for
non-profit use so long as you keep the copyright notice at the
bottom.
References
44. http://www.webreview.com/pub/at/Platform_Independent
45. http://www.webreview.com/pub/au/Oram_Andy
46. http://www.opendvd.org/
47. http://www.2600.com/
48. http://www.napster.com/pressroom/pr/napster-rebuttal.html
49.
http://www.cpsr.org/cpsr/nii/cyber-rights/web/copyright_section_1201
.html 50.
http://cyber.law.harvard.edu/works/lessig/nap/napd3.doc.html 51.
http://webreview.com/wr/pub/2000/05/12/platform/index.html 52.
http://gnutella.wego.com/ 53. http://freenet.sourceforge.net/ 54.
http://cs1.cs.nyu.edu/waldman/publius/ 55. mailto:andyo@oreilly.com
Web Review copyright (c) 1995-2000 Miller Freeman, Inc.
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