Cyberspace Law and Policy Series: Cyberspace Regulation: E-Commerce
and Content
Centre for Continuing Legal Education and Baker & McKenzie Cyberspace
Law and Policy Centre
Grace Hotel, 24-25 May 2001.
One thing that the recent Napster phenomenon brought unambiguously
to the fore was the question of obedience to the law. Media sources publicised
the complaints of defiant Napster users, supported by prominent "alternative"
musicians.[1]
Copyright law disempowers creative talent and leads to the ripping off
of artists and fans alike, it was argued. The law entrenches corporate
greed. The politics of the law became a significant public issue, with
its legitimacy and methods becoming a focus of the ensuing debate.
The battle was cast in oppositional terms, with new peer to peer technologies giving users the upper hand. It was argued that even if Napster was shut down, another bolder technology would rise to replace it. Copyright owners, keen on strict enforcement of their rights, should expect a difficult time. Resistance to copyright should be expected, now and in the future.
Copyright owners, of course, can also arm themselves with technologies- encryption devices, "trusted systems"- forms of copyright control, to arm themselves against pirates, hackers and spoilt university students who simply refuse to pay their due.
Despite some ongoing attempts at legitimate commercial peer to peer ventures,[2] the future of peer to peer technology has largely been cast as confrontation. We are told that at stake is the ideology and culture of the internet: is it a medium for sharing of cultural exchanges with relatively free flows of information with little gatekeeping beyond the limits ethics set for users, or is it about the future of the information economy, with e-commerce dependent upon the control of free riding by strict legal enforcement of owner's rights? Art or commerce; communism or capitalism; globalisation and localised resistance. The scene has been set in terms that draw attention to the historical, ideological, political and personal differences between sides.
This paper is not interested in reappraising the debate in these all too familiar and somewhat tired terms. What that agenda asks is for the lawyer to choose sides and develop creative and tactically useful interventions with a view to a final arbitration by the highest law in the land. What is the significance of the recent Copyright Digital Agenda Amendments and their U.S. equivalents? What arguments can be wielded to read up or down the ambit of those new provisions? The law becomes a game where it seems winner takes all, but any victory has to be read against the prospect of the next engagement. And in this arena any win on the legal front is often subverted by the next technological advance. Small legal gains sponsor the next technological retaliation and vice versa.
This paper argues that law, as it is currently being practised, cannot resolve the battle over peer to peer technologies. The current practice is to seek to resolve the dispute via the legislature through new enactments and via the courts through appellate level decisions interpreting those amendments. Both avenues hope to improve the situation by clearly defining the sphere of permissible social and economic activities in the online environment. But as Anderson and Greenberg comment:
People do take law into account in carrying out their affairs. When they do so, however, they do not merely follow the law. They attempt to evade it, they bend it to their purposes and assert their own interpretations of what it is and should be.[3]Where the politics of the law is at issue, to rely upon the legislature and the courts for resolution is misguided. In the current environment this narrow legal approach cannot command the widespread respect required for its success. The strategy merely breeds resistance to regulation. In this context what is required is a more democratic and socially productive strategy. What is needed is an approach to legal practice that sees the objective less as directing and commanding obedience ultimately through coercion,[4] and more the structuring of a legal and technological environment that gains compliance through convenience and accepts the reality of system seepage.
Historical explanations for its development point to the internet's militaristic origins- the desire to create a decentralised communications network for a post-apocalyptic world where any localised failure can be overcome by removing reliance on an intermediary server.[6] More current sociological explanations of peer to peer's popularity point to frustration at the way PC use has come to be controlled by plodding IT nerds at work, at uni and via the ISP. These IT experts decide the terms of your engagement with the technology and other users, motivated by their own interest in an easy life and pleasing the CEO with the stability and security of their unadventurous IT systems.[7] Peer to peer can cut such intermediaries out of the technological loop.
The Hollywood lawyers have noticed something about the Internet: it conflicts with something they value. That is control over music, films and other form of intellectual property.[8]In the three most notable, well publicised US cases concerning copyright and the internet, the law has protected the investments of the established media owners.
In the MP3 case[9] a company saw a new market in transmitting MP3 files over the internet. Subscribers of "my.MP3.com" could stream music to any internet capable device. To access the service the customer had to first prove they possessed a copy of the relevant music by inserting the CD into their CD-Rom drive for a few seconds (the "Beam It Service") or by purchasing the CD from a co-operating online retailer (the "Instant Listening Service"). Thus the technology was not designed to facilitate illegal copying of music files. MP3.com believed that fair use rights attached to the original purchase of the CD would permit customers to access the same music over an internet service eg. by analogy to time shifting arguments and because the service ultimately increased CD sales. They fell foul of copyright law because the file actually transmitted to the user was one centrally served from a database of files that MP3.com had copied without authorisation. The Company was thus transmitting an infringing file for commercial purposes and not merely re-playing the subscriber's file. In a hearing on damages U.S. District Court Judge Jed Rakoff said it was necessary to send a message to the internet industry community to deter copyright infringement, and ordered damages of roughly US$25,000 per CD copied. Following this the company sought to negotiate business deals with record companies, however not all settlements cover the CDs in the MP3.com collection and music publishers also need to be included in deals.[10] It has been argued that the result of this litigation will be to chill the interest of new legitimate providers of online services, and leave a vacuum to be filled by systems that bring no return to artists like Napster and Gnutella.[11]
The Napster technology, as a peer to peer system, avoided the problems of a corporation centrally storing and serving files. With Napster's software MusicShare, users connect to a Napster central server and the server catalogues the user's MP3 files and makes the names of the files available to other Napster users. Desired files can be downloaded from a host user's PC by using the MusicShare search capabilities and requesting the selected file to be transferred. There was originally no technological or other checking of the legitimacy of files moved through the network. The ensuing litigation, based on a claim of liability for vicarious and contributory infringement ,[12] led to a ruling that Napster, while not be required to shut down, find a way of keeping infringing files off the system.[13] This creates questions about the traceability of files, users and their activities and has some ramifications for ISPs and upstream technology providers. It is argued it requires such providers to police their systems in the interests of copyright owners, to avoid liability themselves.[14]
More recently in the 2600 case[15] eight U.S motion picture studios sued the defendents to prevent them electronically linking their site to others where the DeCSS code could be obtained. DeCSS is designed to decrypt the CSS encryption system on DVD players and allows a copy of the DVD file to be stored. Rather than sue the creators of the DeCSS program, the litigation targeted a few of many who had published information about the cracked code. By publicising the availability of the code, they were held responsible for "trafficking" in copyright circumvention devices, a new offence created under the U.S. Digital Millennium Copyright Act 1998.
Coming on the heels of the Napster decision, the 2600 case has heightened concern about the affect of the law on innovation. Critics claim that the law is lumbering developers of new internet technologies with extensive responsibilities to established media interests, effectively allowing the latter to direct and control the terms on which new players can develop the internet experience. Law is smoothing the transition from old commerce to e-commerce, ensuring that existing media monopolies are translated into domination of the new media world.
In the face of a perceived capture of copyright by copyright owners, some lawyers are looking to trump that body of law by appealing to higher constitutional principles such as the right to free speech.[16] In support of this strategy there has been a rise in the circulation of academic arguments about software as a form of expressive speech or dialogue, in an attempt to disrupt the current legal approach that sees technology as a functional tool or instrument in the service of a particular interest to found more a more permissive attitude to technological development and communications.[17]
One primary inspiration is to prove the legal impossibility of obtaining compliance- to create technology that defeats the law. As Judge Kaplan observed in the 2600 case, many of the reproductions of and links made to the DeCSS code were motivated by electronic civil disobedience. The point was to frustrate the studio's recourse to the judicial system for effective relief and perhaps, make it impossible by broadly circulating and publicising the information across the globe. One of the more unusual methods, recently accessed through Napster, makes the DeCSS code available in the form of a song.[20]
In an interview for SPIN magazine its creator, Ian Clarke explained his motivations in fashioning Freenet:
Milner: You've called Freenet "a near perfect form of anarchy". Given how enormous the internet has become, is online anarchy such a good idea?In peer to peer conferences and in the tech press, there are ongoing debates about the "best" peer to peer approach. In these discussions it is clear that as well as technical considerations of efficiency and ease of access, ones that conform most closely to the internet ideal of free-flowing communication and avoid the practical reach of regulators are highly prized.
Clarke: By "perfect" I mean a well-planned, decentralized system. There are a lot of people now who have a stake in trying to control the Internet, so it's important to build systems that have no central control. If you look at Napster, for example, there are people who have central control, which means legal action can be taken against them. The owners of Napster could be bribed into selling it to the music industry. In order to make Freenet immune to that, I designed it so that it doesn't depend on any one person or computer. I don't control it. If somebody put a gun to my head and said: "Shut down the system", I'd be unable to do it. ...
Milner: So Freenet is ultimately your way of challenging copyright law?
Clarke: My original idea was to create a system that would allow the free distribution of information without censorship. The copyright thing was really secondary to that. I was initially motivated by Australia's internet-censorship legislation, which basically meant that the government could produce a list of websites that ISPs were required to restrict access to.[21]
The material surveyed and published in November 2000, suggests that in the main Freenet carries fringe material for fringe communities. For example, the largest number of items 37.6%, were classified as text. Of these texts 59.4% concerned drugs, mostly contraband in the U.S. There was one Harry Potter book and Orwell's 1984. After text, audio items made up 21.9% of the sample. Rock comprised 71.5% of this, (although Orwant notes this may be a case of over-reporting, since rock albums carry more tracks on average than classical music ones). Albums included ones by Genesis, Eurythmics, Alphaville, Sterolab, Information Society and Sinead O'Connor. Images made up 14.3% of the total sample: 89% porn. Software made up 11.3%. Of this 27.3% were identified as Perl scripts; 21.5% was proprietary software, broken down into 61.5% games (overwhelmingly for Nintendo consoles) and 19.2% Adobe.
While the user base may diversify, particularly as Napster changes its practices, it would need some radical influxes of traffic to warrant embarking on a difficult legal intervention in an attempt to shut it down. Nonetheless Hilary Rosen of the Recording Industry Association of America (RIAA) has been reported as saying that Freenet was on her hit-list of websites to close down.[23]
Resistance to copyright in forms such as Freenet needs to be understood not simply as "hacker" attempts to outsmart politicians and legal technicians responsible for the new statutory provisions affecting online communities. The resistance is not to the content of the particular laws alone, assuming developers have that requisite legal knowledge. It is more broadly motivated by opposition to the culture of internet legal practice. The logic of these "alternative" developers is quite rationally based in a rejection of regulation and regulators that show no regard for their beliefs, experiences and technological desires. In their view they are implicated as subjects of laws that house no place for them and their practices. It is no surprise that at a recent P2P conference, in response to the recent legal rulings, that John Perry Barlow exclaimed:
I want everyone in this room to consider themselves a revolutionary and go out and develop whatever you damn well please.[24]This is a response to be expected. In this regulatory environment, high profile litigation with strong arm judicial and industry statements in support of enforcing owner's rights merely proves the outsider's point of view and further hardens resistance. From a counter-cultural perspective it is a strategy bound for failure. It will breed the very problems most feared, and whilst prohibitions on linking to "problematic" material as in the 2600 case, can eventually drive such material underground, in the process it also helps found a community and solidarity amongst outsiders and their more respectable supporters, attracts further converts to the cause, and sponsors further causes.
What is a copyright "circumvention device" as defined in recently amended digital agenda copyright acts? Does it encompass most peer to peer technologies that operate without license from media owners? If potentially so, was that intended? The lack of legislative definition is supposed to reflect a desire for technological neutrality so that the law keeps pace with current practices. But shouldn't that also include a techno-cultural neutrality rather than just sanction the continual updating of the term in the interest of established media owners? Where the law reaches to the outside world for its direction, the law is more than simply legislation dispassionately applied. It engages a community politics, whether or not law and lawyers are willing to acknowledge and deal with the political difficulties that come with that.
Community perceptions need to be accounted for in the telling of the law and in the practice of the law. The assumption behind the current legal practice is to assume that once these deviant peer to peer systems are done away with, proprietary systems will take their place, with micropayments replacing the current "free" trades.[25] That strategy is based upon a fundamental cultural assumption- outside of the technical hitches- that users will accept micropayments.[26] Whether they do or not will depend on a myriad of factors including cost, convenience, the difficulty of accessing free stuff, what is available for free, attitudes to the current practice of the law in this regard, and law more generally. However given the now quite long established culture and practice of free access on the internet it is by no means clear that selling micropayments is going to be easy. And trying to coerce individuals into that system could make matters for owners far worse.
The reality is that there is no perfect system, no need for complete and strict compliance with legal rules and no realistic possibility of ever achieving that objective. If that is the case isn't it time to accept the reality of resistance to regulation? It is alright to be asking "how do we accelerate the legitimate music industry online?"[27] but to expect to control what the future will be and what that economy might look like is asking too much.
Dr Kathy Bowrey
Email: kbowrey@unsw.edu.au
Copyright and Cyberlaw Website: http:// www.chickenfish.cc/copy
[2] See Stephen Withers, "Feature: Peer, There and Everywhere", Australian Personal Computer, April 2001 at 90ff.
[3] N. Anderson & D. Greenberg, "From Substance to Form: The Legal Theories of Pashukanis and Edelman", Social Text (1983) Vol 3(1), p 69 at 82.
[4] Backed up by education campaigns that naively suggest that if people know the law, they will deferentially follow it.
[5] See Withers above n.2, and Clay Shirky, "What is P2P and What Isn't", The O'Reilly Network: http://www.openp2p.com/pub/a/p2p/2000/11/24/shirky1-whatisp2p.html
[6] Damien Riehl, "Peer to Peer Distribution Systems: Will Napster, Gnutella and Freenet create a Copyright Nirvana or Gehenna?" (2001) 27 Wm. Mitchell L. Rev. 1761
[7] Clay Shirky, "Smuggled in under cover of darkness", The O'Reilly Network: http://www.openp2p.com/pub/a/p2p/2001/02/14/clay_darkness.html
[8] David Sims, "Lessig: Fight for your right to innovate", The O'Reilly Network: http://www.openp2p.com/pub/a/p2p/2001/02/16/lessig.html
[9] U.M.G. and others v MP3.com Copy. L. Rep. (CCH) P28,141, 2000 U.S. Dist. LEXIS 13293 (S.D.N.Y. 2000); 109 F. Supp. 2d 223, 2000 U.S. Dist. LEXIS 12113 (S.D.N.Y. 2000); 92 F. Supp. 2d 349, 2000 U.S. Dist. LEXIS 5761
[10] Larry Neumeister, "MP3.com to Pay Dearly", ABC News Online, http://www.abcnews.go.com/sections/tech/DailyNews/mp3_com000906.html
[11] MP3.com CEO Michael Robertson quoted in Brad King, "RIAA Wins Suit Against MP3.com", Wired News, http://www.wired.com/news/business/0,1367,35933,00.html
[12] A & M Records Inc v Napster Inc, 114 F. Supp. 2d 896 2000 U.S. Dist. LEXIS 11862 (N.D. Cal. 2000).
[13] A & M Records Inc v Napster Inc, 54 U.S.P.Q.2D (BNA) 1746, 2000 U.S. Dist. LEXIS 6243 (N.D. Cal. 2000)
[14] Robin Gross, "9th Circuit Napster Ruling Requires P2P Developers to Ensure No One Misuses their Systems", EFF, http://www.eff.org/intellectual_property/P2P/Napster/20010226_rgross_nap_essay.html
[15] Universal City Studios v Reimerdes, 111 F. Supp. 2d 294, 2000 U.S. Dist. LEXIS 11696 (S.D.N.Y. 2000); 111 F. Supp. 2d 346, 2000 U.S. Dist. LEXIS 11949 (S.D.N.Y. 2000); 104 F. Supp. 2d 334, 2000 U.S. Dist. LEXIS 9936 (S.D.N.Y. 2000); 98 F. Supp. 2d 449, 2000 U.S. Dist. LEXIS 6970 (S.D.N.Y. 2000; 82 F. Supp. 2d 211, 2000 U.S. Dist. LEXIS 906 (S.D.N.Y. 2000).
[16] This is one of the grounds of appeal in the 2600 case. See also Tim O'Reilly & Richard Korman, "Code + Law: An Interview with Lawrence Lessig. Legally and Technically, Hollywood is Assaulting Some Basic Rights", at The O'Reilly Network: http://www.openp2p.com/pub/a/p2p/2001/01/30/lessig.html
[17] For an Australian view on this see Brian Fitzgerald, "Intellectual Property Rights in Digital Architecture (including Software): The Question of Digital Diversity", [2001] EIPR (3) at 121 and "Software as Discourse: The Power of Intellectual Property in Digital Architecture", (2000) 18 Cardozo Arts & Ent. L. J. 201.
[18] For a comparative legal analysis of Napster, Gnutella and Freenet see Riehl above n.6.
[19] See O'Reilly & Korman, above n.16.
[20] http://freenet.sourceforge.net/
[21] Greg Milner, "Anarchy from the U.K", Spin, Sept 2000 p164-5.
[22] Jon Orwant, "What's on Freenet?" The O'Reilly Network: http://www.openp2p.com/pub/a/p2p/2000/11/21/freenetcontent.html
[23] Joseph Gallivan, "The Kid-Napsters- RIAA's Rosen Targets Other Bootleggers", New York Post, 28 July 2000.
[24] The context was the O'Reilly P2P conference, as reported in Withers, above n.2 at 98.
[25] They are not currently free- someone pays for connection time, ISPs, machinery, system software etc.
[26] See Clay Shirky, "The Case Against Micropayments", The O'Reilly Network: http://www.openp2p.com/pub/a/p2p/2000/12/19/micropayments.html
[27] Hilary Rosen in Brad King, "A Chat with Hilary Rosen", Wired News at http://www.wirednews.com/news/print/0,1294,39108,00.html