Peer-to-Peer Copying

By Christopher Yang and William W. Fisher III.

Last Updated May 1, 2001


Table of Contents

Introduction
Case Studies
Readings
Discussion Topics
Additional Resources

 


Introduction

Most Internet content today is "served" from a central system that takes requests from a user's "client."  Typically, the user asks for access to information or other data; the requested content is then "pushed" from the central system to the user.  In this model, the various visitors to a given web site do not interact.  By contrast, peer-to-peer technology (commonly known as "P2P") creates conversations among individual personal computers (PCs).  In this respect, P2P systems resemble an affiliate network where information (rather than referrals) is passed along many people.

P2P interactions are often initiated when one computer asks several other individual personal computers whether they have a specified file or type of information.  Each computer to which the search request is sent either responds or, more commonly, forwards the request on to a second tier of computers, each of which may pass the request onto a third tier, and so forth.  As the request "cascades," content across a wide network of machines is searched.  When a "match" is made, the sought-after file is transmitted directly to the original requester.

Most applications of P2P technology are wholly benign.  Problems arise, however, when the material flowing through networks of this sort is copyrighted and is being reproduced without the permission of the copyright owners.  For two reasons, nonpermissive P2P file-sharing of copyrighted materials is extremely difficult to police.  First, the structure of P2P systems makes it hard for either copyright owners or government officials to track the movement of copyrighted materials as they pass from user to user.  Second, because P2P systems usually do not employ centralized transmission nodes or distribution points, they are very difficult to shut down.

While both the digitization of information and the concept of file sharing have existed for many years, the advent of the Internet has made P2P copying possible on a scale never before imaginable.  The industry that, thus far, has been affected most dramatically and visibly by the new technology is the music industry.  The main reason why the action in this field has been especially intense is that musical files -- especially when compressed using the popular MP3 format -- occupy relatively little space and thus are easily transmitted through P2P networks.  That circumstance underlies the enormous popularity of Napster, a modified P2P system, and Gnutella (a “purer” example of the P2P model without an intervening server).  Using these systems, it is now possible for individuals to create libraries of their favorite songs by downloading free copies of them from the Internet.  Alternatively, individuals can "rip" MP3 files from their own CDs using inexpensive or, in many cases, free software designed exclusively for that purpose.  Users can then play-back these files in a variety of ways.  They can listen to them on a variety of portable MP3 devices or directly from their hard drives, they can send their files via email to other music fans, or they can upload their files to the Internet for anyone to enjoy.  And because the music is in digital form, each successive copy sounds as good as the original.

But music is only the first industry to feel the force of this technological revolution.  As the bandwidth available to ordinary computer users grows, as file-compression technologies for other types of media proliferate, and as the size of hard drives increases, all other entertainment industries will likely be transformed in similar ways.  Already, systems such as Gnutella and Aimster enable copying of most other file formats.  Movies, software, books -- nothing is invulnerable to this technological revolution.

This module examines the legal and policy implications of P2P technology.  Is it beneficial or pernicious?  Is it legal or illegal?  Which, if any, of the participants in the new networks should be liable to the owners of the copyrights in material that is transmitted and reproduced without permission?

It is crucial that, before beginning the module, you have at least a rough understanding of the relevant techonology and the principal doctrines of copyright law.  If you feel uncomfortable in either dimension, you should consult the attached primers on digital music and the basics of copyright.  You should then peruse the case studies, which focus on the continuing legal battle over Napster and the legal status of alternatives to Napster.  Next, we suggest that you examine the Readings associated with the module, following as many of the associated links as you find interesting.  At that point, you should be well prepared to consider -- either on your own or, better yet, in one of our electronic fora -- the Discussion Topics.  The module concludes with a substantial body of Optional Related Material.
 
 

Back to Top | Intro | Case Studies | Readings | Discussion Topics | Additional Resources


Case Study 1:  Napster

The Internet-related controversy that generated the most heat and light during the past year was the titanic struggle between the Recording Industry Association of America (RIAA) and Napster.com.  Napster is not a traditional search engine, but a protocol that enables individual computer users to share information concerning the contents of their hard drives.  Specifically, it enables a user interested in obtaining an MP3 copy of a particular song to search the drives of other Napster participants for the song in question -- and then, after locating a copy, to download it to his or her own drive.  The service has proven extraordinarily popular, espcially among college students.  A high percentage of the traffic on many university networks now consists of Napster searches and downloads.

Aware that its system facilitates the nonpermissive reproduction of copyrighted material, Napster has employed various tactics to minimize its exposure to liability:  it neither stores nor caches any digital music (infringing or otherwise) on its servers; it trumpets a "Copyright Policy" in which it disclaims responsibility for the activities of  its subscribers and insists that they promise not to violate the law; and it promises to "respond expeditiously to claims of copyright infringement committed using [its] service." Unimpressed, the RIAA filed suit, accusing Napster of both contributory and vicarious copyright infringement.

In its defense, Napster has made three legal arguments. First, it has invoked the protection of sections 512(a) and 512(d) of the Digital Millenium Copyright Act (DMCA), which provides to the operators of "transitory digital network connections" and "Information Location Tools" "safe harbors" against liability for copyright infringement. Second, Napster argues that peer-to-peer copying of digital files using its system constitutes ""the noncommercial use by a consumer" of "a digital audio
recording device," which, pursuant to section 1008 of the Audio Home Recording Act, cannot constitute copyright infringement. Because its members are not engaged in copyright infringement, Napster argues, it plainly cannot be liable for contributory copyright infringement. Finally, Napster insists that a significant percentage of the uses of its system involves lawful copying of musical files -- either because the owners of the copyrights in the songs in question do not object to (indeed, encourage) the duplication of their works or because the character of the copying is such as to make it a "fair use." Consequently, Napster argues, its system is manifestly "capable of substantial noninfringing uses," and thus is immunized against liability for contributory copyright infringement by the decision of the Supreme Court in the Sony case.

At the trial-court level, Napter's arguments fared badly. In April of 2000, Judge Marilyn Patel rejected Napster's invocation of DMCA 512(a). On August 10, Judge Patel rejected all of Napster's remaining arguments and granted a preliminary injunction against the continued operation of the system. The Court of Appeals for the Ninth Circuit has been somewhat less hostile. One day after Judge Patel's second ruling, the Court of Appeals stayed the imposition of the injunction pending an appeal. Oral argument on the appeal was heard on October 2, 2000. The tenor of the questions asked by the three-judge panel suggested that they were more receptive than Judge Patel to Napster's position.

On February 12, 2001, the Court of Appeals handed down its much anticipated ruling.  The three-judge panel declared that Napster must stop trading in copyrighted material and may be held liable for vicarious copyright infringement.  This decision raises strong concerns about Napster's long-term legal and business prospects.

The company was allowed to stay in business until Judge Patel retooled her injunction, which the appellate court labeled "overly broad."  Under the Ninth Circuit's ruling, Patel needed to the shift the burden of proof to the five major record labels, who must identify songs that are being improperly traded on Napster before the service is obliged to remove them from its system.  Napster hopes to continue the war, either by seeking a reconsideration of the panel's judgment before the entire Ninth Circuit or by obtaining review of the decision in the U.S. Supreme Court.  (Click here for  Napster's official response from CEO Hank Berry.)

Meanwhile, in early March, Napster agreed voluntarily to halt illegal song trades by implementing a filtering system designed to catch copyrighted materials.  In response, Judge Patel opted not to shut down the service and ordered the record labels to assist Napster in identifying individual infringing file names, as well as song titles and artist names to be blocked.  While significantly less broad than her original order, Patel's revised order required that Napster help enforce misspellings and other variations that are slipping through its filters. The company has three days to block a file after determining that it infringes on copyrighted materials.

Within a week of setting up its filters, the average number of MP3 files shared by Napster users fell close to 60% according to analysts at Webnoize.  By early April, this number had stabilized to 36% and Napster had blocked 311,000 individual songs, as well as 142,000 various misspellings of those song names or artist names. But in a hearing on April 10, 2001, Judge Patel described Napster's filtering efforts as "disgraceful."  Patel suggested that "maybe the system needs to be closed down" if it was unable to catch all copyrighted material.  Nevertheless, Judge Patel failed to take any further action against Napster and instead opted to await testimony from the newly appointed court mediator, A.J. "Nick" Nichols, who also served as the court expert in Sun Microsystems' suit against Microsoft.  On the other hand, Patel refused to approve claims that might have led to legal liability for individuals associated with Napster such as CEO Hank Barry; John Fanning, uncle of Napster creator Shawn Fanning; and venture capitalist Hummer Winblad.

To further complicate matters, Judge Patel issued a memorandum on April 27, 2001 that  the record labels must identify at least one infringing file on the ever-changing network before Napster is obligated to block copies of the song.  This is designed to avoid unnecessary work for Napster, which claims that its filtering technology already blocks 1.6 billion music files from its services.  Additional findings regarding the technology are not expected until Nichols offers his research to the court.

Professional and popular reaction to the litigation and to the (pen)ultimate decision has varied widely.  Some members of the music industry clearly sympathize with the RIAA.  According to Ron Stone of Gold Mountain Management, which represents such artists as Bonnie Raitt and Tracy Chapman, "[i]t is the single most insidious website I've ever seen… its like a burglar’s tool."   Prominent individual artists and groups are speaking out as well.  One of the most outspoken critics of Napster is the heavy metal rock group Metallica, which sued Napster in U.S. District Court in Los Angeles for copyright infringement and racketeering in April 2000.  In a surprising move, the band delivered to Napster 13 boxes containing 60,000 pages of  documents identifying usernames of people who allegedly made Metallica songs available online and demanded that Napster "boot" them from the service. Napster complied, blocking 317,377 user names from its service in early May of 2000.

In his interview with Slashdot, Metallica drummer Lars Ulrich stated, "I don't want to sound too combative here, but you know, when somebody f---s with what we do, we go after them."   In his testimony to Congress, Lars commented that "if you're not fortunate enough to own a computer, there's only one way to assemble a music collection the equivalent of a Napster user's: theft."  Likewise, Sean "Puffy" Combs, CEO of Bad Boy Entertainment, Inc. was horrified at the infringement activities he alleges to have discovered transpiring over the Napster site:

I couldn't believe it when I found out that this Napster was linking thousands of people to the new Notorious BIG album "Born Again," a week before it even hit the streets.  This album is a labor of love from Notorious BIG's friends to the man, his kids, the rest of his family and everyone else whose lives will never be the same since BIG passed.  BIG and every other artist Napster abuses deserve respect for what they give us.
However, not all artists are opposed to Napster.  Notable supporters include Rap singer Chuck D and modern rock bands Smashing Pumpkins, Limp Bizkit, the Rosenbergs, and Ben Folds Five.  Billy Joe Armstrong of Green Day says, "I just want my music to be out, and that's always been the main priority."

Industry observers suggest that, even if the RIAAA prevails, it may gain little.  Napster lawyer David Boies was quoted in a 60 Minutes II interview as stating, "This is a case that the record industry can't win.  If they shut down Napster today in the United States, it pops up in a different country totally outside their control."

In April, the five major recording labels launched two competing initiatives to tap into the subscription model for downloadable music.  In one corner, RealNetworks became the technology partner for MusicNet (backed by AOL Time Warner, Bertelsmann and EMI Group).  The remaining two labels, Universal Music Group and Sony Music Entertainment, opted to partner with Yahoo! to launch Duet.  Though details remain clouded, both MusicNet and Duet are aggressively aiming for summer 2001 launches for their respective services.  While the lack of unanimity across all labels is likely to weaken both offerings, these two joint ventures may further erode Napster's popularity and long-term propspects.

For more information on the RIAA v. Napster suit, please check out the additional resources section.
 
 

Case Study 2:  Gnutella

Gnutella is a program developed by Justin Frankel at Nullsoft, AOL's development house that is credited with creating the MP3 player WinAmp.  Its name is partly a tribute to the Free Software Foundation’s "GNU" project and a play on words referring to "Nutella," Europe's popular chocolate-hazelnut spread.  Gnutella, allows users to connect to a peer-to-peer network, where each node on the network functions as both client and server.

AOL shut down the service on March 15, just one day after a limited beta was released.  Anne Bentley, a spokesperson for AOL, dubbed Gnutella an "unauthorized freelance project."  Some observers pointed to AOL's announced merger with Time-Warner as the driving force behind the decision.  CNN describes Time-Warner as having been "one of the loudest critics of Napster and MP3 piracy as a whole."  Soon afterwards, the project was adopted by bands of open-source programmers, and a variety of unofficial sites across the Internet began offering the program for download.

Unlike Napster, Gnutella may be able to argue that the system is not designed solely for the purpose of exchanging music files.  Unfortunately, the other primary application for the technology has been the swapping of pornographic materials (some of which are also copyrighted).  But Gnutella has no central server to maintain the listings and its architecture can be used for any other type of files that users choose to share.  Furthermore, it may also be of legal importance that the transfer does not take place over the Gnutella network.  Gnutella merely searches for matches, and the actual download is performed via the HTTP protocol.

To use Gnutella for downloading music or other files, one must initially find an IP address on the Gnutella network (GnutellaNet).  While this can be a lengthy process that may take some trial and error (at least for beginning users), a few websites now feature IPs that you can use for this purpose.   And once the program is initially set up, Gnutella is able to locate servers without the user having to enter IP addresses manually.

So far, Gnutella has been supported largely by a network of volunteers who have avidly adopted the technology.  Users have volunteered time to create friendlier user-interfaces.  Those efforts have done much to improve the software, but it is still significantly less effective and accessible than Napster.  Moreover, the fact that the software's future direction depends on volunteer developers from fragmented camps has resulted in two major versions of updates in the past few months.  Currently, P2P performance on the network is limited by major issues revolving around scalability and concerns about "hiccups" over the speed of slower computers.

These growing pains aside. Gnutella does offer Internet users disappointed by the deterioration of Napster an alternative.  Other P2P systems are also emerging.  One of the more popular is Aimster, which "piggybacks" on AOL's popular instant messenger (estimated to have over 21 million users by Media Metrix in November 2000).  In addition, third-party Linux clients are already available, and Java versions of Gnutella can be found that work on the Macintosh Operating System.

As yet, the RIAA does not yet view Gnutella as a major threat.  Instead, the RIAA is focusing its legal energies on pursuing Napster clones that have failed to implement any filtering technologies.  According to Frank Creighton, the Recording Industry Association of America's chief anti-piracy officer, "we have a strategy, but we have yet to implement it."  On the other hand, the Motion Picture Association of America, has begun contacting ISPs of Gnutella users exchanging pirated Divx movies under the DMCA.

Interestingly, a recent paper by Xerox's famed Palo Alto Research Center has attracted a lot of attention in the Gnutella community.  The study indicates that over a 24-hour period, nearly 70% of Gnutella users share no files, and nearly 50% of all responses are returned by the top 1% of sharing hosts.  These numbers indicate massive "free-riding" and a high concentration of file-sharing - both of which suggest that targeted legal attacks against high-activity nodes may impact the overall Gnutella network.

For more information about Gnutella, please visit the additional resources section.
 
 

Back to Top | Intro | Case Studies | Readings | Discussion Topics | Additional Resources


Readings

The statutes and judicial decisions relevant to copyright law on the Internet are numerous and complex.  In this section, we will deal primarily with the statutory law that is most relevant to the distribution of online music (and other digital media).  This module assumes that you have some background training in, or at least familiarity with, the fundamental principles of copyright law.  If this is not the case, we suggest that you first explore some basic copyright tutorials.

Copyright Act

The Copyright Act of 1976, 17 U.S.C. §§ 101 et. seq., provides copyright protection both to "musical compositions" and to "sound recordings."  Thus, there will generally be two copyrights associated with any single recorded song that is not yet sufficiently old to have passed into the public domain.  However, even if the musical composition copyright has fallen into the public domain, a modern recording of it will still be copyrighted.

Under 17 U.S.C. § 201, copyright originates with the author of a work.  This author may freely transfer any or all of the exclusive rights that make up the copyright grant (such as the right of reproduction and the right of distribution).  Authors of musical compositions and creators of sound recordings often transfer their exclusive rights to music publishers and record companies.

Composers and publishers are represented by a variety of institutions, some of which license activities that otherwise would violate the copyright laws -- such as the broadcast of musical compositions by radio stations.  Other institutions engage in lobbying and anti-piracy efforts on behalf of the artists and publishers.   The Recording Industry Association of America (RIAA) performs a variety of such functions on behalf of its membership, which includes the largest record labels in the world.  The RIAA routinely patrols the Internet, searching for pirated files, and sends cease-and-desist letters to apparent copyright violators.   The RIAA also initiates lawsuits on behalf of its membership.

One of the earliest and most influential decisions pertaining to the digital reproduction of copyrighted materials came from the Supreme Court in a 1984 case challenging the legality of the video cassette recorder (VCR).   In Sony Corp. v. Universal Studios, Inc., 464 U.S. 417 (1984), the Supreme Court held that copying a television program for noncommercial use within the home did not infringe the copyright in the program.  More specifically, the Court determined that the practice of "time-shifting" -- i.e., recording a television program for viewing once and only once at a later time -- was permissible under the fair use doctrine.  The Court then ruled that, because one of the major uses of VCRs is time-shifting, the manufacturers of the machines were not liable for "contributory copyright infringement," even if the VCRs were sometimes used for illegal purposes.  To escape liability, the manufacturers needed only to show that their products were "susceptible of a significant noninfringing use," which they had done.  Whether the Sony doctrine is applicable to technologies like Napster is currently debated.

Audio Home Recording Act of 1992

The current struggle over peer-to-peer copying is not the first copyright battle that has been waged on the digital music front.  In 1986, digital audio cassettes (DATs) were first introduced, and many believed that this technology would take the place of the traditional and ubiquitous analog audio cassette tape.  Because the new machines recorded music in digital form, they created a new threat of large-scale high-quality piracy.  Records and cassette tapes are subject to wear and tear, and second- or third-generation copies created from one of these analog devices are often scratchy and of poor quality.  Digital audio tapes, by contrast, allow for "perfect" reproduction, in which each successive copy is identical to its predecessor.  The recording industry, consequently, lobbied against the introduction of the DAT into the United States.  (Some industry commentators believe that the resultant delay is responsible for the failure of the technology to gain consumer interest.  Others blame the lack of consumer enthusiasm on relatively high equipment costs and consumer loyalty to pre-existing audio cassette collections.)

Despite the fact that the threat of mass piracy supposedly posed by DAT technology never materialized, the recording industry's lobbying efforts did pay off in the form of a piece of legislation specifically designed to appease copyright holders' concerns.  The Audio Home Recording Act of 1992 (AHRA), 17 U.S.C. §§1001-1010, mandates the inclusion in DAT machines of copy-control devices that limit the ability of would-be profiteers to create serial copies of protected works.  Under AHRA §1002(a), a "digital audio recording device" must conform to a Serial Copy Management System (SCMS) designed to prevent multiple copies being created from a single work.  A "digital audio recording device" is defined as a device capable of rendering a "digital audio copied recording."  To trigger the statute, a copy must be a digital reproduction of a "digital music recording" and must be produced either directly or from a transmission.  See AHRA §1001.  Finally, under AHRA §1002(c), it is unlawful to attempt to circumvent the SCMS.  Consumers, however, also benefited from the Act.  AHRA §1008 provides that consumers who make noncommercial copies of musical recordings utilizing a covered device or medium shall not be made liable under a copyright infringement theory.

The AHRA has already been interpreted once in the MP3 context -- specifically in a suit against the manufacturers of a portable MP3 player.  In that case, the RIAA brought suit against Diamond Multimedia, a company that produces the Rio, an MP3 playback device.  The Rio is similar to a walkman and allows an MP3 user to download sixty minutes worth of music files from his or her hard drive and listen to the music remotely.  In Recording Industry Association of America v. Diamond Multimedia Systems, Inc., 180 F.3d 1072, 1074 (9th Cir. 1999), the Court of Appeals for the Ninth Circuit found in favor of the defendant, ruling that the AHRA did not apply to the Rio device, because the computer hard drive from which the Rio records could not be considered either a digital audio recording device or a digital music recording within the meaning of the Act.  Moreover, according to the court, because MP3 files are not coded with generation status or other copyright information, and because copies cannot be made of the files downloaded to the Rio, the SCMS would serve no useful function.

SDMI

Despite its victory in court, Diamond Rio and other hardware vendors recently have been involved in the Secure Digital Music Initiative (SDMI) to introduce copyright protection mechanisms to their portable MP3 players.  The SDMI is a working group composed of over one hundred and eighty businesses and organizations that are trying to develop specifications for the secure distribution of  music over the Internet.  The specifications are intended to be cross-platform, so that they will be compatible with many different hardware and software products.  SDMI has already fallen behind its initial proposed deadlines (it had hoped to have had its specifications ready for incorporation into merchandise by Christmas 1999), but it has selected a watermarking scheme and guidelines for an encryption scheme that is designed to make copyright information readable from digital music files.  This information will be readable by SDMI-compliant portable devices that eventually will refuse to play pirated music files encoded with the copyright protection specifications.  We will discuss technological protection mechanisms, including SDMI, in further detail in a later module.  For more information about technical alternatives in the context of digital music, check out these resources.

Digital Millennium Copyright Act (DMCA)

Where copyright protections are in place, it may be unlawful to design a product that will circumvent that technology.  The DMCA §1201(a) prohibits the manufacture and distribution of certain devices that circumvent technological protection mechanisms designed to prevent the unauthorized access of protected materials.  Prohibitions on the unauthorized access itself will come into effect on the second anniversary of the Act.  Jonathan Band, a lawyer in Washington D.C., has written a helpful memo on the DMCA.   If you are interested in further details about this protection, take a look at the RealNetworks v. Streambox materials -- a case that has recently been settled.

The DMCA raises additional issues for Online Service Providers (OSPs) that maintain pirated files on their servers or that link to pirated materials.  Under the DMCA §512(c)(1) (and, indeed, under all but one paragraph of the section), "the term ‘service provider’ means a provider of online services or network access, or the operator of facilities therefor."  The DMCA §512(c)(1) exempts an OSP from liability for housing on its servers copyright infringing material unless the OSP has notice of infringing material and fails to move expeditiously to remove it.  Thus, unless the OSP knows that a site hosted by one of its servers contains pirated MP3 files, it is under no obligation to search out such infringing materials on its servers.  The OSP must, however, provide a contact person to whom copyright holders can express concerns about possible infringing materials.  Once a copyright holder puts the OSP on notice that the infringing materials are present, the OSP must quickly remove them.  Thus, if a group such as the RIAA gives notice to an online provider that MP3 files are being transmitted across its systems, it can put pressure on the system administrator take some kind of action to curtail the alleged piracy.

Similarly, liability under the DMCA §512(d) is limited where an online provider is "unwittingly linking or referring users to sites containing infringing materials."   The liability exemption for "unwittingly linking" is limited to the circumstance where provider is unaware of the infringement.  If a search engine provides an indexed list of links to counterfeit MP3 files, the RIAA could argue that the fact that so many MP3 files are pirated gave notice, or at least constructive notice, to the provider that it was linking to infringing material.  Relying on this provision, the RIAA has already taken issue with at least one indexed MP3 search engine.  According to the RIAA:

We have communicated with Lycos about their new MP3 search engine, and they have committed to work with us to develop procedures to eliminate infringing sites from their directory. They also indicated their intent to fulfill their obligations under the newly enacted Digital Millennium Copyright Act, which requires them to take appropriate action whenever they become aware of an infringing musical recording.
The Lycos search engine has since been reduced to little more than a collection of dead links, a common problem encountered when searching for MP3 files on the Internet.  However, other sites have sprung up offering sleeker indices and claiming to minimize the number of dead links encountered when searching for MP3 files.

Over the last six months of 2000, the Copyright Office has conducted a series of statutorily mandated public hearings concerning the efficacy and wisdom of the DMCA.  While the Copyright Office's final report is expected to be submitted to Congress by the end of February, actual changes are unlikely to be adopted until at least 2002.

Finally, there are three additional U.S. statutory sections of which you should be aware.  Please skim the summaries of the following: the Digital Performance Right in Sound Recordings Act of 1995, the No Electronic Theft Act and the Federal Anti-Bootleg Statute.

International Dimensions of the Issue

For an introduction to international copyright law, begin by reviewing Findlaw's doctrinal summary entitled " International Copyright Protection."  Then, please review the following articles from the Berne Convention, which provides copyright law protection to foreign nationals in signatory states:

Berne Article 2 (defining the scope of copyright protection granted under the treaty)
Berne Article 9 (right of reproduction)
Berne Article 13 (sound recordings)
Berne Article 14 (cinematographic rights)

For more information on the International Dimensions of online music distribution, see the additional resources section.
 
 

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Discussion Topics

1.  RIAA v. Napster:  Imagine that you are a Supreme-Court justice hearing arguments from both the RIAA and Napster on appeal.  How would you rule and why?  How do you see your decision affecting the development and usage of P2P technology?

2.  Gnutella:  Imagine that you are representing the RIAA in both a legal and a business capacity.  How would you address the technological "work-around" that Gnutella offers to potential copyright infringers?  Are there legal or other mechanisms for halting the flow of copying on this P2P network?  What would be your advice to the RIAA in how best to face this challenge, as well as new technological developments that continue to emerge?

3.    Many of the more vocal proponents of MP3 argue that some music pirating is justified, because music companies are already "ripping consumers off" through enormously high profit margins on CDs and other non-Internet music sales.  In fact, the major labels have recently settled with the FTC to end policies that are estimated to have added $500 million to CD prices since 1997.  Other observers disagree, suggesting instead that music companies lose a great deal of money each year on the unsuccessful CDs they produce, making some subsidy derived from high profit margins on better selling items necessary to enable the record label to continue production of more financially risky projects ("portfolio diversification").  Who do you believe has the more persuasive argument?  Can or should the legitimacy of music piracy be evaluated by economic observations such as these?

4.    For the past few years, many people have been arguing that the Internet will cause "disintermediation" (cutting out the middleman in many consumer transactions) and therefore cause consumer prices to fall.  At least one record company executive predicts just the opposite for the future of online music.  According to an interview with Jeremy Silver of EMI, digital music creates reintermediation, citing such increased cost factors as web hosting, music directories, streaming technology, security, watermarking, and transaction companies.  Which view do you think is more persuasive?  How do you think the current spate of lawsuits are likely to impact this "supply chain?"

5.    Some observers believe that digital media will resurrect the idea of micropayments, small charges for online activities or purchases that accrue over time before payment becomes due.  Because individual record tracks are often too inexpensive to purchase separately, would micropayments make more sense?  Would you support such a system?  Do you believe that the major labels would support such a system and would their support be necessary?

6.    The WIPO Copyright Treaty of 1996 provides that it shall be illegal to attempt to circumvent technological protection measures implemented by copyright owners.  With the jurisdictional enforcement problems created by the Internet, is international copyright law the only remaining method through which countries can see that copyright laws will be effective?

7.   The first-sale doctrine in copyright law provides that once a copyright holder has sold the tangible embodiment of his work, he or she ordinarily will not be allowed to control its future disposition.  Some critics of SDMI argue that watermarking and encryption technologies will in effect allow the copyright holder to prevent any future sales or transfers of the work and will thereby frustrate the first-sale doctrine.  Should the SDMI be required to insure that the original purchaser of a digital music file be able to dispose of it as he sees fit, or will the market force the price of digital music down to compensate for the reduced value to the purchaser of the file who cannot resell or transfer the file in the future?

8.    To what extent should piracy be curbed by law and to what extent should it be curbed through code (e.g., the implementation of technological protection schemes)?  How useful are the two enforcement mechanisms likely to be in the context of digital media distribution?  This may become increasingly important as content owners have recently shifted emphasis from encryption to tracking of file sharing - raising fundamental questions about privacy and monitoring.  (Each of these issues will be reconsidered later in the month.)
 
 

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Additional Resources

Index:

  • Copyright Law
  • Major Cases
  • Sony
  • Rio
  • MP3.com
  • Napster
  • Gnutella
  • Technological Alternatives
  • International and Comparative Law
  • Personalities
  • Related Conferences

  • Copyright Law

    Copyright tutorials

    Betsy Rosenblatt, "Copyright Basics", Spring 1998
    BitLaw Primer
    Cornell Copyright Primer
    Cyberspace Law Institute, Cyberspace Law for Non-Lawyers (see lessons 2-12)
    Federal Copyright Office Primer
    Timeline: A History of Copyright in the U.S
    UT System Digital Library: Crash Course in Copyright


    Copyright link sites

    Directory of National Copyright Administrations
    Stanford University Copyright & Fair Use site


    Articles related to copyright and the Internet

    Don Biederman, "Copyright Trends: With Friends Like These...," Fall, 1999:  Written by the vice president and general counsel for Warner/Chappel Music, the article explores a number of changes in copyright law which occured during the last decade of the twentieth century
    Anne K. Fujita, "The Great Internet Panic: How Digitization is Deforming Copyright Law," 2 J. TECH. L. & POL'Y 1, 1996
    Mark A. Lemley, "Dealing with Overlapping Copyrights on the Internet:"  Article is available for download from the site
    Bob Kohn, "Primer on the Law of Webcasting and Digital Music Delivery," September, 1998:"  Article detailing the music licensing process and the legal complexities introduced by the phenonmenon of webcasting
    Brad Templeton, "10 Big Myths about Copyright Explained:"
    Music Licensing Organizations
    ASCAP:  American Society of Composers, Authors and Publishers
    BMI:  Broadcast Music, Inc.
    Harry Fox Agency
    SESAC
    Statutory Law
    The Copyright Act, 17 U.S.C. §§ 101 et. seq.
    Audio Home Recording Act
    Full text of the Digital Millennium Copyright Act
    Legislative History of the Digital Millennium Copyright Act:  Maintained by the Home Recording Rights Coalition (HRRC), an advocacy group organized "to protect the right to use VCRs, audio recorders and computers for private, non-commercial purposes"
    Ronald G. Dunn, Information Industry Association, H.R. 2281 and H.R. 2180 Hearings before House Courts and Intellectual Property Subcommittee (Sep.16, 1997)
    Mike Kirk, American Intellectual Property Association, H.R. 2281 and H.R. 2180 Hearings before House Courts and Intellectual Property Subcommittee (Sep.16, 1997)
    Honorable Bruce Lehman, Assistant Secretary of Commerce and Commissioner of Patents and Trademarks, H.R. 2281 and H.R. 2180 Hearings before House Courts and Intellectual Property Subcommittee (Sep.16, 1997)
    Roy Neel, United States Telephone Association, H.R. 2281 and H.R. 2180 Hearings before House Courts and Intellectual Property Subcommittee (Sep.16, 1997)
    Jonathan Band, "The Digital Millennium Copyright Act:"  Memorandum summarizing key points of the Act
    Digital Performance Right in Sound Recordings Act of 1995, 17 U.S.C. 106(6) and 114
    No Electronic Theft Act
    Federal Anti-Bootleg Statute
    Miscellaneous
    Home Recording Rights Coalition
    Kohn on Music Licensing
    Major Cases

    Sony

    Sony Corp. v. Universal Studios, Inc., 464 U.S. 417 (1984) (summary | full text)


    Rio

    Recording Industry Ass'n of America v. Diamond Multimedia Systems, Inc., 180 F.3d 1072, 1074 (9th Cir. 1999) (summary | full text)
    MP3.com
    RIAA Complaint: Provided by MP3.com.
    "MP3.com Files Suit Against RIAA:"  From MP3.com; MP3.com files a responsive suit against the RIAA
    "MP3.com Stores Your CDs":  Describes the MP3.com services that are now under attack from the RIAA
    Matt Carolan, "Pirates of the Internet":  Discusses the allegations against MP3.com as well as discussing generally "current" events relating to copyright on the Internet
    Christopher Jones, "RIAA Sues MP3.com":  Provides some legal analysis of MP3.com's potential liability
    Courtney Macavinta, "RIAA Sues MP3.com, Alleges Copyright Violations":  Estimates the damages MP3.com may owe should it be found liable for copyright infringement
    Jim Hu, "MP3.com's New Features Get Mixed Reception":  Describes MP3.com personalization services, Beam-It and the Instant Listening Service
    Napster
    Napster Lawsuit Q&A:  As provided by the RIAA
    Declaration of Michael Robertson, CEO and Chairman of MP3.com, Inc.
    Transcript from Napster Hearing on July 26, 2000
    Judge Marilyn H. Patel's Opinion on Napster Preliminary Injunction
    Janelle Brown, "MP3 Crackdown":  Discusses the RIAA's allegations against Napster as well as RIAA crackdowns on university piracy
    Robert Lemos, "Napster Plays Dodgeball with Music Biz":  Discusses some of the copyright claims that could be brought against the Napster service
    Courtney Macavinta, "Recording Industry Sues Music Start-Up, Cites Black Market": Explains some of the Napster features and describes some of the copyright complexities raised by the suit
    Chris Oakes, "Time for a Napster Rest?":  Describes Internet traffic bottlenecks on university computer systems attributable to wide-scale Napster use on campus networks and efforts to block access to the site by some university administrators
    Mark Pesce, "Napster, The Media Network That Might Upstage The Web":  Provides some detail on how the Napster service operates
    Scott Rosenberg, "The Napster Files":  Provides some detail on how the Napster service operates
    John Borland, "Napster Can Play On, but Threat Looms:"  Napster decision could result in the shut-down of the service, particularly if it is found liable for major financial damages
    Bevin Cummings, "Vox Populi on Napster:"  The Industry Standard scoured Internet message boards for the public's reaction to the federal court's ruling
    Mike Drummond, "Napster, BMG Skinny on Details:"  Though a major announcement, few questions answered after the announced alliance between Napster and Bertelsmann
    Benny Evangelista, "Napster Users Turn Down the Volume:"  Report of 80% drop in number of music files shared on the Napster service as new filters are blocking an estimated 1.6 billion song files
    John Healey, "Napster Set to 'Fingerprint' Songs:"  Napster introduces new software which will randomly sends fingerprints from a user's computer to detect any copyright violations.
    Brad King, "Music Sites Like Napster Pay Plan:"  Companies such as Emusic and Listen.com are encouraged by the idea of a subscription based model for Napster because it allows them to charge for their own services
    Brad King, "Study: Napster Use Isn't Stealing:"  A recent study indicates that both Internet and non-Internet users felt downloading music was not stealing
    Hane Lee, "Napster Won't Remain the Same:"  A subscription based model for Napster may not work because users expect the service to be free but viable alternatives may not exist
    Andrew Morse, "Napster Adds Some Political Muscle:"  Napster has hired Manus Cooney, a senior aide for Senator Orrin Hatch (R-Utah) to advise on policy matters
    Andrew Morse, "Sleeping With the Enemy:"  Commentary on alliance between Napster and Bertelsmann
    Andrew Morse, "Where's Napster's Pay Service? Don't Ask:"  Recent activity suggests that Napster and Bertelsmann are not well coordinated in their efforts to roll out the promised subscription based model for the service
    Roger Parlofff, "Court's Rebuke of Napster Gives Superlawyer Boies Surprising Wiggle Room:"  Article suggests that the decision from the Appeals Court avoided the important issue enforcement
    Sue Zeidler,  "Napster CEO Says Millions Still on Service:"  Napster CEO reports that the service still has 8 million users each day


    Gnutella

    Janelle Brown, "The Gnutella Paradox:"  Introduction to the Gnutella technology and the potential legal difficulties of shutting down the service
    Michael Delio, "Gnutella Development Gnotted:"  Conflict between programmers that have been supporting Gnutella could threaten the technology


    Technological Alternatives

    John Borland, "New Technology Could Help Squelch Digital Music Piracy:"  Manufacturers attempting to create safeguards for data storage that prevent the copying of copyrighted materials onto their hard drives
    Melanie Austria Farmer, "Report: Music Pirates Will Evade Countermeasures:"  Predicts that many technical solutions to thwart illegal copying will be ineffective
    Gwendolyn Mariano, "Attacking Piracy at the Source: CDs:"  The music industry is seeking protection against online piracy on a variety of fronts
    International and Comparative Law

    Treaties/International Agreements

    Berne Convention (links to full text)
    Berne Article 2 (defining the scope of copyright protection granted under the treaty)
    Berne Article 9 (right of reproduction)
    Berne Article 13 (sound recordings)
    Berne Article 14 (cinematographic rights)
    Universal Copyright Convention, Paris, 1971
    WIPO Copyright Treaty of 1996 (summary) | (full text)
    WIPO Performances and Phonograms Treaty of 1996
    World Trade Agreement 1994 (establishing the WTO and including GATT 1994)
    Articles
    Robin D. Gross, "Swedish Court Exonerates Teen of Internet Music Piracy":  Prosecutorial charges brought against a teenager who was linking to pirated music files from his website were dismissed after a Swedish court found that the teen did not "copy, distribute or spread the pirated music files" and, thus, was not guilty of music piracy
    Christopher Jones, "Swedish Retailer Pushes MP3":  Swedish company claims to be the first in Europe to offer secure digital music distribution
    Patrizia Piccolo, "Music Copyright":  Canadian perspective of music and copyright from a student-at-law


    Statutes

    Australian Copyright Act of 1968


    Informational Sites

    Articles, Analysis and Letters from the Dec. 1996 WIPO Diplomatic Conference in Geneva
    World Intellectual Property Organization
    International Copyright:  From Bitlaw
    International Copyright Protection:  From Findlaw.
    International Trade Instruments, Treaties, Conventions, Model Laws, Rules
    International Copyright Infringements In Cyberspace: A Conflict-of-laws Analysis
    Doing Business in Argentina:  See paragraph 4.4 on copyright.
    EU Amended proposal for Directive on copyright and related rights
    Franklin Piece Intellectual Property Mall:  International intellectual property links
    Personalities

    Shawn Fanning, Founder of Napster

    Business Week e.biz 25:  Fanning chosen by Business Week as one of the top influential people in eBusiness for 2000
    Chris Connelly, "Shawn Fanning Speaks:"  Interview with Fanning conducted by MTV
    Nathaniel Fredman, "Napster Founder Shawn Fanning:"  Interview with Fanning conducted by U-Wire
    Lynda Gorov, "Hi, I'm Napster:"  Profile of Fanning by the Boston Globe
    Karltaro Greenfeld, "Meet the Napster:"  Profile of Fanning and the events leading up to the creation of Napster
    Thomas Melville, "Shawn Fanning - He Is Radically Redefining How We Use the Internet:"  Profile of Fanning by Success Magazine
    Giancarlo Varanini, "Q&A with Napster creator Shawn Fanning:" Interview with Fanning conducted by ZDNet


    David Boies, Napster Lawyer

    Boies, Schiller & Flexner:  Law firm co-founded by Boies in 1997 that has handled a variety of high-profile cases
    Oral Arguments Before the U.S. Court of Appeals for the Ninth Circuit:  MP3 files of key sections of the Napster Oral Arguments presented by Boies on October 2, 2000
    Susan Garland, The Microsoft Trial: The Best Legal Show in Town:"  Discussion of Boies as one of the two key litigators in the Microsoft case
    John Heilemann, "David Boies: The Wired Interview:"  Interview with Boies conducted by Wired


    Hilary Rosen, RIAA president

    John Borland, "RIAA chief determined to keep copyright controls:"  Interview with Rosen conducted by CNET
    Janelle Brown, "On the Record:"  Interview with Rosen conducted by Salon
    Jason McCabe Calacanis, "RIAA CEO Hilary Rosen on the Music Industry's Reaction to Digital Technology:"  Part II of Interview with Rosen conducted by Silicon Alley Reporter in conjunction with Digital Coast 2000 Conference
    Brad King, "A Chat With Hilary Rosen:"  Interview with Rosen conducted by Wired
    Brad King, "RIAA Chief: Piracy Is Doomed:"  Interview with Rosen conducted by Wired available in MP3 format
    Julene Snyder, "Jam Session With Music Exec Hilary Rosen:"  Interview with Rosen conducted by The Industry Standard
    Tess Taylor, "An Interview with Hilary Rosen:"  Interview with Rosen conducted by The Los Angeles Music Network


    Michael Robertson, CEO and Founder of MP3

    Michael Robertson:  Biography on the MP3 website
    Tom and David Gardner, "Fool Interview with Michael Robertson, CEO of MP3.com:"  Interview with Robertson conducted by The Motley Fool
    Brad King, "He Wants His My.mp3.com:"   Interview with Robertson conducted by Getsigned.com
    Beth Lipton, "View From the Eye of the Net Music Storm:"  Interview with Robertson conducted by CNET
    Gerri Miller, "A Conversation With MP3.com's Michael Robertson:"  Interview with Robertson conducted by Wired
    Aaron Pava, "Michael Robertson Interview:"  Interview with Robertson conducted by ZDNet
    Michael Robertson, "Top 10 Things RIAA Should Do:"  Suggestions outlined by Robertson for the RIAA to bridge the gap in communications


    Related Conferences

    Signal or Noise?   A conference co-sponsored by the Berkman Center and the Electronic Frontier Foundation that explored the legal and social implications of online music distribution.  The conference was held on February 25, 2000.  The proceedings may be found in a RealVideo archive.  For more information on the legal and social implications MP3 technology, read the briefing book prepared in connection with the conference.  In addition, Harvard's policies regarding Napster and other P2P technologies are discussed in a November 15, 2000 roundtable discussion.

    The Future of Music Policy Summit:  Recently held January 10-11, 2001 in Washington, D.C. to capture the views of music, business, and technology

    All Shook Up - The Music Industry Confronts the Internet and Consolidation: Conference sponsored by the The Harvard Journal of Law & Technology on April 21, 2001.  Keynote speaker was Nicholas Butterworth, President and CEO of MTVi.


     

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