[Date Prev][Date Next][Thread Prev][Thread Next][Date Index][Thread Index]

[FYI] (Fwd) Article: The Napster Case: Shed the Baggage and Move On

------- Forwarded message follows -------
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
To:             	gilc-plan@gilc.org
Send reply to:  	gilc-plan@gilc.org


                                   [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
       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


  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
  .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.

------- End of forwarded message -------