This work is licensed under a Creative Commons Attribution 4.0 International License.
by
Andy Oram
July 27, 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 Pavel that Shawn 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.
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 movie studios tried to make sites take down links that pointed to DeCSS code—on a number of grounds, including its potential use in software that can make unauthorized copies of DVDs. Open-source and Internet advocates have made a strong advocacy effort at such sites as The OpenDVD Group and 2600.
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.
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 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.
Sean Fanning will definitely find a use somewhere for his talents. In fact, he may not even have to shut down Napster.com, 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 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 a 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 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:
It has “substantial noninfringing uses.”
Copyright holders could use “self-help” measures to prevent infringing uses.
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 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.com 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 Gnutella, Freenet, and Publius) that hold great promise for distributed processing and human interaction.
This work is licensed under a Creative Commons Attribution 4.0 International License.
Andy Oram is an editor at O’Reilly & Associates. This article represents his views only. It was originally published in the online magazine Web Review.