Who is to Blame for Modern-Day Piracy?
RIAA’s Misplaced Blame and a Need to Analyze
the
Broader Issues of Copyright Infringement.
Piracy: robbery committed or attempted on the high seas. It is
distinguished from privateering in that the pirate holds no commission from and
receives the protection of no nation but usually attacks vessels of all nations.
Because it is often the result of failure or laxity in patrolling sea routes,
piracy flourished in times of unrest, or when navies ordinarily protecting
commerce were engaged in war. Pirates found their most suitable base of
operations in an archipelago that offered shelter together with proximity to
trade routes. Pirates preyed upon Phoenician and Greek commerce and were so
active in the 1st cent. B.C. that Rome itself was almost starved by their
interception of the grain convoys. Famous names appearing in the long history of
piracy include Sir Francis Drake and Sir John Hawkins, the Elizabethan
buccaneers, Edward Mansfield, Henry Morgan, Jacques Nau, Jean Laffite, and
Edward Teach
(Blackbeard).
[1]
- INTRODUCTION
Music has been an integral part of society and
continues to play an important role. With the development of technology and the
ability to reproduce and commercialize music, the creative aspect has taken on a
characteristic of property. Real estate law governs the area of real property,
however, with the emerging field of non-tangible property, including concepts,
inventions, and high technology, the area of intellectual property law was
established to govern patents, trademarks, and copyrights. In recent years under
copyright law, there has been growing debate about the protection of digital
music files recorded on compact discs and defining the limits of copyright law
in relation to developing computer technology. A somewhat recent census
statistics reflected the nation’s full-fledged entry into the computer
age. U.S. residents were more likely to use a computer than ever before,
according to 1997 figures. About 92 million U.S. residents 18 and older used a
computer as long as four years ago, a virtual eternity in the high-technology
world. That number was triple the figure from
1984.
[2] In
addition, high-speed broadband connections, which Jupiter [a research
organization] estimates are in 15.5 million homes
now.
[3]
Also,
“two in five Internet users in the United
States now have high-speed access at home as telephone companies slash prices to
better compete with cable broadband services. In a report Sunday, the Pew
Internet and American Life Project placed the adult residential broadband
population at 48 million, or one-quarter of all adult
Americans.”
[4]
This illustrates that computers and the Internet are becoming more integral in
society as music has been for centuries. As music is changing with the
development of computer technology, the recording industry is at the forefront
of raising issues for copyright protection for music files, while consumers and
software developers are receiving the brunt of copyright infringement lawsuits.
RIAA lawsuits that have made recent
headlines
[5]
have targeted college students and even more recently a 12-year old
girl
[6],
threatening monetary penalties for copyright infringement between $750 to
$150,000 per music file found on their computer hard
drive
[7].
Considering that RIAA targets individuals with 1000 or more music files on their
hard
drives
[8],
the imposition of such monetary penalties would translate into millions of
dollars for one individual to pay. The RIAA seeks such penalties to serve as a
deterrence from infringing on music copyright. However, the RIAA does not expect
these “infringers” to pay such costly
penalties
[9],
since most of these individuals have been college students, who barely have
graduated high school and have any credit and/or income to their name. Rather,
the RIAA uses the imposition of such penalties as a threat to strong-arm these
individuals to settle to a much reduced
amount
[10].
In the case of the 12-year old girl, her mother agreed to settle for
$2,000
[11]
instead of the potential millions of dollars her daughter was responsible for
because she simply wanted to download her favorite songs, a far cry from malice
against the recording industry.
It is this paper’s contention that the
RIAA has misdirected their efforts to stop such copyright infringement. The RIAA
tries to curb infringement bringing lawsuits and imposing the threat of an
enormously large penalty. In recent articles, the wave of lawsuits targeting
consumer individuals found to infringe on copyrighted music files have had an
impact on infringers to stop illegally downloading copyrighted music even if it
was temporary. The question as to whether litigation tactics utilized by the
RIAA effectively accomplishes their goal to reduce copyright infringement is one
of the considerations of this paper. Another consideration is if there are other
ways to accomplish the goal of reducing copyright infringement with greater
effectiveness than seeking out individual infringers and going through costly
litigation procedures.
A couple of the sources to the problem of
infringement begin with the development of technology and putting it into
consumer markets. Though there are various uses, infringing and non-infringing,
for CD recording devices, known as CD burners, such as to back up data, save
large-sized files, etc., one of the main uses is to make audio CD’s from
downloaded music files. The same goes for the development of blank media
CD’s, CD recording software, and the development of file-sharing software,
such as Napster.
RIAA’s effort to protect
copyright would be more effective and efficient by continued lobbying for
regulation of, and working with those who research and develop such type of
technologies and implementation of safeguarding technologies to disallow the
copying of such music files.
Presently, Roxio, the CD recording software
company, has bought the dormant Napster and modified the previously infringing
software into a pay-per-download software. With the high costs of CD’s,
and consumer dissatisfaction of paying $20-$25 per CD and often complaining
about only 2-3 tracks being to their liking, Roxio is charging $.99 per song or
$9.95 per album they download through a new version of Napster, or for $9.95 per
month subscribers have unlimited streaming and
downloading.
[12]
This alternative to charging per downloaded song seems to be a more viable
bargain-for-exchange concept, allowing paying customers to pay for the songs
they want to purchase, giving them the opportunity to listen to the music track
first before they actually purchase it.
The first part of this paper is to
give a background as to the development of file-sharing technology, its
modification from centralized to decentralized systems, and the difficulty in
holding peer-to-peer networks liable for copyright infringement of MP3s. The
second part will discuss the DMCA and its safe-harbor provisions for ISPs and
end users in their role as user infringers and the difficulty in pursuing end
users as direct infringers. The third part will discuss the technology and its
availability to consumers that all play a significant role to facilitate
copyright infringement on the Internet. The fourth part will present some policy
concerns and arguments on a broader level as to why the controversy over
copyrighted music has come to its present state of turmoil and ultimately, why
RIAA’s actions are ineffective. And finally, the paper will present a
couple of alternatives that have been implemented and the positive steps being
taken to preserve current computer technology and advance copyright protection
for digital music files.
- FILE-SWAPPING AND ITS MAJOR PLAYERS
- Background
Users are those who have access to a
computer and to the Internet, who make digital copies of sound recordings
available on the Internet. By making these recording available to other users,
they engage in what is known as
file-sharing.
[13]
File-sharing technology via music files, better known as MP3’s, Moving
Picture Experts Group 1 Audio Layer
3
[14],
allows users to copy an original recording from a compact disc with minimal loss
of sound quality regardless of the number of copies made from the original or
from a digital
copy.
[15]
MP3 facilitated the swapping over the Internet because of the compressed format
of the
file
[16],
compressing music files at a 12-to-1
ratio
[17],
while WAV
files
[18]
are relatively
larger
[19]
than MP3 files because it is an uncompressed format. Consequently, because of
its compressed size, MP3’s allows users to send and receive the digital
audio files between computers through email or quickly download
files
[20]
through the
Internet.
[21]
MP3 swapping became an eye-raising phenomenon with the dawn of Napster in
1999
[22].
Prior to the start of Napster there were similar type of P2P network software,
such as
Scour.net
[23]
in
1997
[24],
which operated under a centralized
server
[25]
through which users would download the software and search the available
computer files for
download.
[26]
These companies had some control over the types of files on its
system
[27];
however, they were both ultimately unsuccessful. Napster operated under similar
technology of “a centralized communication architecture to identify the
‘.mp3’ file extension available for download”, through the
file-sharing software the users would download to link available users to each
other.
[28]
The success of Napster where its predecessors failed was that Napster users
could connect directly to one another via the
Internet,
[29]
rather than connect to a central
server
[30]
through which they would run a search of a specific music file and indirectly
retrieve music
files.
[31]
However, after the
injunction
[32]
and the demise of Napster in July
2001
[33],
a slew of Napster alternatives, such as KaZaA, Morpheus, Grokster, and
eDonkey
[34],
popped up on the Internet, providing a continued means for users to download
songs without paying for
them.
[35]The
new generation of file-sharing systems, also known as second-generation P2P
networks
[36],
are decentralized file-sharing systems that facilitate the sharing and
downloading of MP3’s without the necessity of a centralized server through
which users’ computers link
through.
[37]
Unlike Napster, the current generation of P2P file sharing programs allows users
to search music file libraries of other online
users
[38]
directly without the use of a web site because they now connect directly to one
another from computer to
computer.
[39]
Individual users’ computers pass information from computer to computer,
relaying file inquiries and responses in a decentralized P2P
network.
[40]
Once the file is located, the user downloads the file using the file-sharing
software provided by the P2P networks, without requiring a central server to
index file
locations.
[41]
The prime example of the new generation of P2P networks is
Gnutella
[42],
which is an open source protocol for decentralized
P2P.
[43]
P2P networks like Gnutella do not have an official client software particular to
that network. Closed decentralized P2P networks that do employ a file-sharing
application allow businesses to bring their workers together by enabling the
facility of transferring information among each
other.
[44]
Although businesses make use of P2P network technology to facilitate the
exchange of information among its employees, these networks have the capability
to facilitate the exchange of copyrighted files as
well.
[45]
This raises the issue of whether distributing copyrighted information among a
small group of private users would constitute fair use under 17 U.S.C. §
107.
[46]
Recently, with the proliferation of swapping and sharing of copyrighted
music files among an unlimited number of non-private users the issue of fair use
has been determined not to be a viable defense to copyright infringement, as in
the case against
Napster.
[47]
Napster was held to have violated copyright laws because they did not own
licenses to distribute, download, or to facilitate others in distributing or
downloading any of the copyrighted
music.
[48]
Consequently, the plaintiffs in the A&M Records, Inc. case did not receive
royalties or other forms of compensation when Napster users obtained a copy of
the music
file.
[49]
The second-generation P2P networks, such as Grokster and KaZaA, which have
replaced Napster, have been in litigation with the recording and entertainment
industry based on the theory of vicarious infringement by facilitating the
sharing of copyrighted material with their
software.
[50]
Prior to litigation, there was difficulty in shutting down second-generation P2P
networks
[51]
as KaZaA because it does not require a central server, and therefore no company
to sue since the activity occurred on a peer-to-peer
level.
[52]
Another difficulty to sue these P2P networks is that the networks and its users
are independent of each other so that if the networks were to close its doors
and deactivate all the computers in their control, users of their software could
continue sharing their files with little or no
interruption.
[53]
An example of the difficulty in holding P2P networks liable for copyright
infringement is the decision in
MGM Studios, Inc., where the District
Court held that the defendants, Grokster, Streamcast, and KaZaA, were not
infringing on copyrights directly, contributorily, or vicariously distinguishing
these networks from Napster in that these networks are entirely outside the
control of the defendants and the lack of evidence to indicate that the
defendants have the ability to supervise and control the infringing
conduct.
[54]With
the difficulty in holding P2P networks liable for copyright infringement, the
recording and entertainment industries have turned their attention toward
Internet Service Providers (ISP) and individual users. The RIAA has recently
turned its attention in curbing copyright infringement by utilizing the
provisions of the Digital Millennium Copyright Act toward the ISPs. In case of
Verizon Internet Services Inc., the RIAA was initially successful in
serving a subpoena on Verizon to release the full identity of its customers who
have been identified as copyright infringers under an anonymous online user
name.
[55]
The purpose of retrieving the full
identity
[56]
of the alleged copyright infringer was to then file individual lawsuits against
the
users
[57]
as the RIAA carried out in September 2003 to stop the millions of users engaging
in the same
activity.
[58]
The RIAA lawsuits against users have not gone uncontested in the same way ISPs
have contested the use of subpoenas to reveal their customers
identity.
[59]
In December 2003 the Court of Appeals for the District of Columbia handed the
recording industry a setback deciding that the district court vacate its order
enforcing one subpoena and to grant the Verizon’s motion to quash another
subpoena based on the fact that a subpoena under 17 U.S.C. § 512 could be
issued only to an ISP engaged in storing infringing material on its servers or
the subject of infringing activity, and not as a mere conduit
ISP.
[60]
The area of intellectual property dealing with issues of copyright, though
not itself a novel concept, deals with problems that innovative technology
poses.
[61]
Copyright protection for digital music files has posed such a problem. Though
the RIAA has taken the lead in shaping the protection for copyright of digital
music files, the RIAA and the entertainment has had its share of
victories
[62]
and
defeats
[63]
in the courts. The
ISPs
[64]
and individual
users
[65]
have responded to the RIAA’s litigation attacks. Presently, the various
parties remain at a stalemate with none of the parties making substantial gains
to claim an upper-hand and to shape the issue of copyright protection for
digital music files.
- Parties in Conflict
- The RIAA vs. Consumers
The Recording Industry Association of
America (RIAA) is the trade group that represents the U.S. recording industry.
RIAA members create, manufacture and/or distribute approximately 90% of all
legitimate sound recordings produced and sold in the United
States.
[66]
While there have been a few lawsuits that have gone to trial against consumer
individuals
[67],
the threat of lawsuits with penalties ranging from $750 to $150,000 per music
file found on the computer hard
drive
[68]
have brought consumers to settle with the RIAA in varying
amounts.
[69]
In fact, the RIAA has just filed another wave of lawsuits on January 21,
2004
[70]
in spite of their recent setback in December 2003, when their subpoena was
vacated and another quashed.
- The RIAA vs. File-Sharing Software Providers
Beginning notably
with
Napster
[71],
there have been plenty of lawsuits that have followed against similar
file-sharing software providers, i.e. Morpheus and
Grokster
[72],
Gnutella
[73],
and most recently,
KaZaA
[74].
The method of sharing information over the Internet is through Peer-to-peer
(P2P) network communication, allowing computer users with the same networking
software to connect with each other and thereby facilitate access and sharing of
music
files.
[75]
By facilitating the access and sharing of
MP3’s
[76],
the RIAA has turned its focus for litigation to P2P software providers who
provide the forum through which users can share copyrighted music and try to
circumvent copyright infringement liability.
- The RIAA vs. Internet Service Providers
In the past year, the
RIAA has brought Internet Service Providers (ISP) like Verizon, Inc.
[77] into court to force them to reveal
the true identities of their customers who have been found to have infringed on
music copyrights. While the DMCA affords the RIAA measures by which to have ISPs
collaborate with their efforts, the ISPs have not yet easily acquiesced to
RIAA’s demands to turn over their customers’ identities. For
example, in July 2003, PacBell Internet Services, another ISP, took a more vocal
stance against the RIAA, opposing the subpoenas that are being served on ISPs to
reveal their customers’ identity to help tackle the problem of copyright
infringement over the
Internet.
[78]
Both the RIAA and the ISPs have had its share of victories and setbacks in the
DMCA realm, with the RIAA having greater success under federal statute to obtain
the identities of the individual infringers, and eventually settling for damages
outside of court.
- COPYRIGHT INFRINGEMENT
- The Digital Millennium Copyright Act (DMCA)
In 1995, a
Clinton Administration Task Force issued a “White
Paper
[79]”
summarizing how copyright law could be applied to the Internet and recommending
certain changes to increase copyright
protection.
[80]
Congress responded to the coming of the digital technology by passing the
Digital Millennium Copyright Act in
1998.
[81]
The DMCA served to prevent the use of circumvention technologies to access
databases and other works in electronic
formats.
[82]
The DMCA provides liability limitations for transmitting online copyrighted
material
[83],
and it provides criminal
penalties
[84]
for circumvention of copyright protection
systems
[85]
and for compromising the integrity of copyright management
information.
[86]
The DMCA includes a section that makes existing copyright law compatible with
the Internet, titled “Limitations on Liability Relating to Material
Online.”
[87]
The purpose of extending copyright law to online material was to partly amend
the Digital Performance Right in Sound Recording Act
(1995)
[88]
and to regulate the digital transmission of sound recordings through the
Internet, where producers and performers did not have copyright protection for
their artistic
works.
[89]
Ultimately, the DMCA was enacted to protect both the copyright holders from
infringement via the Internet and the
ISPs.
[90]
Section 512 of the DMCA enacted a limitation of liability for
ISPs.
[91]
Section 512 took up and adjusted the approach taken in
Religious Technology
Center v. Netcom On-Line Communication Services,
Inc.[92],
where the court held that Netcom was not directly
infringing.
[93]
The court held that the programmed specialized processes that made the Internet
viable would not be subject to strict liability for
copying
[94],
instead, infringing conduct would determined according to the standards of
contributory
infringement
[95]
and vicarious
liability.
[96]
The ISPs were concerned over the possibility of excessive liability as a result
of the Netcom standard and lobbied Congress to adopt “safe
harbors
[97]”
for ISPs, which shelter qualifying ISPs from copyright liability when users of
the service engage in infringing
activities.
[98]
To qualify for two of the safe harbors, the ISP must not have actual or
constructive knowledge that the material or activity in question is
infringing
[99];
and to qualify for three of the safe harbors, the ISP must immediately disable
access to the infringing material before the alleged infringer is given notice
and an opportunity to be
heard.
[100]
Under § 512(a), an ISP is not liable for copyright infringement
“by reason of the provider’s transmitting, routing, or providing
connections for, material through a system or network controlled or operated by
or for the ...ISP, or by reason of the intermediate and transient storage of
that material” in providing this
service.
[101]
Section 512(b) concerns the intermediate and transient storage of material on
the ISP’s server, stating that system cache that is stored temporarily on
the server will not automatically give rise to liability, conditioned on three
occurrences.
[102]
In § 512(c) an ISP will not be liable as long as it does not have actual
knowledge or awareness that the material is infringing a
copyright.
[103]
And where the ISP does have actual knowledge or awareness of copyright
infringement, the ISP can still escape liability as long as it acts
“expeditiously” to remove the infringing material from its
server.
[104]
Finally, § 512(d) does not hold ISPs liable for providing links or
references to infringing material, given that the ISPs are not
aware
[105]
of the infringing material the links and references point to, and in the case
the ISPs are aware of the infringement, the ISP must act
“expeditiously” to remove or halt the
access.
[106]The
DMCA facilitates the obtaining of a subpoena under § 512(h) as a means to
protect copyright holders from infringement by online
users.
[107]
Essentially, the subpoena allows copyright holders to obtain personal
information on the infringing individuals by compelling the ISPs to release such
information.
[108]
However, the subpoena will be granted on the basis that he copyright holders
have a “good-faith
belief
[109]”
that the copyrighted material is being infringed, and that the copyright holders
provide the ISPs with adequate information to locate the copyrighted
material.
[110]
- User Infringement
The DMCA targets ISPs and their
activity in relation to copyrighted material on the
Internet.
[111]
The DMCA delineates what is infringement and provides safe-harbor provisions to
determine if ISPs are liable, or if there is question as to their liability,
ways that ISPs can be free from
liability.
[112]
However, infringing conduct does not occur on the ISP level, who provide
services and access to the Internet, but issues of infringement have been
determined to be either
contributory
[113]
or
vicarious
[114].
Infringing conduct takes place when users take advantage of the several means at
their disposal: the Internet, ISP service, and file-sharing software and
products, to obtain copyrighted material without paying for them.
The courts
have determined that file-sharing technology itself is not
infringing
[115]
because of its potential for non-infringing uses, such as “sharing
non-copyrighted works, or works considered to be within the public
domain.”
[116]
File-sharing may also constitute fair
use
[117]
such that transfer of a file through a P2P network for research or scholarly use
purposes would not constitute
infringement.
[118]
However, there are potential infringing uses for file-sharing as well, such as
making music files on the Internet available for download without paying for
them would constitute
infringement.
[119]
In this regard fair use would not be a viable defense because the user receives
a direct benefit, “profiting from the exploitation of the copyrighted
material without paying the customary
price.”
[120]
Because of the safe-harbor provisions of the DMCA and the difficulty in holding
ISPs liable for copyright infringement, the recording industry has chosen to
push for more aggressive prosecution of individual infringers as a general
deterrence
strategy.
[121]Users
are the most likely targets for prosecution because they are most directly
responsible for the infringing
activity.
[122]
However, the millions of users online simultaneously provide some difficulties
in pursuing litigation against them sufficient to make a drastic impact on
copyright
infringement.
[123]
Some of the difficulties that copyright holders can face, making criminal
prosecution of individual infringers extremely complex are: “(1) finding a
means to identify infringers that is both technologically possible and
constitutionally acceptable; (2) finding targets whose infringing activity
exceeds the statutory minimum value for criminal activity; and (3) proving the
mens rea requirement of criminal
infringement.”
[124]
In addition to the complexity of pursuing litigation against individual
infringers, the recording industry also faces obstacles in carrying out
lawsuits: (1) pinpointing the identity of the
infringer,
[125]
“(2) even if the direct infringer is found, it is unlikely that that
individual will have the “deep pockets” necessary to satisfy a
judgment”,
[126]
and “(3) even if prosecutors can successfully identify targets, P2P
technology, Fourth Amendment search and seizure jurisprudence, and the copyright
doctrine of “fair use” may combine to prevent the successful
criminal prosecution of most
infringers.”
[127]Given
the difficulties and the complexity of the issues to proceed with lawsuits
against individual infringers, the recording industry’s efforts have been
relatively
unsuccessful
[128]
and
inefficient
[129]
in trying to track down and identify
infringers
[130],
serve subpoenas on ISPs to obtain the identity of the
infringers
[131],
and then file civil
lawsuits
[132].
The RIAA has seen instances of success in having individual infringers settle
with them for their
infringement
[133],
but compared to the enormous volume of users and the amount of copyrighted music
files being transferred and
shared
[134],
their success is overshadowed by their ineffectiveness. A very interesting
online article supports this viewpoint in that suing individuals is
time-consuming and ultimately
ineffective.
“Reader Michaela Stephens says
that if the Electronic Frontier Foundation (EFF) is right and that 60 million US
folk are file sharing, it’s going to take the Recording Industry
Association of America (RIAA) a mighty long time to get round to them all.
“
“She said: “I pulled out my
calculator to see just how long it would take the RIAA to sue all 60 million P2P
music file traders at a rate of 75 a day. 60,000,000/75 = 800,000 days to
subpoena each person or 800,000 days/365 days in a year = 2191.78 years to
subpoena each person”.
“Michaela points out that it’s unrealistic to suppose that the
RIAA will have any money left in 2191 years, and she even wonders whether the
trade association will exist then.”
“Plus, she points out, given the rate of tech advancement, it’s
likely that we’ll have moved on to many different types of music media in
even a hundred years.”
“She continues: “So let us consider more realistic numbers. The
RIAA plans to sue thousands of file sharers. Working in increments of
5000: 5,000 people/75 subpoenas a day = 66 days How are they going to keep track
of all these lawsuits going on? 10,000 people/75 subpoenas a day = 133 days or
about 2/3 of a year.”
“Keep in mind suing 10,000 people is still only going to
impact only one six thousandth (1/6000) of the file traders out there. And who
is getting rich off of this? The lawyers. Betcha not a single musician will see
a cent of this money.”
“15,000 people/75 subpoenas a day = 200 days (1 out of every 4000
affected) 20,000 people/75 subpoenas a day = 266.6 days (1 out of every 3000
affected)”
“When might this actually start affecting us? When 1 out of every 10
is affected? That would mean they’d have to sue six million people. That
would take, ...(6,000,000/75 = 80,000)... 80,000 days ... or 2191 years!
They’d have to sue our great grand
children!”
[135]In
addition to the game of cat and
mouse
[136],
the recording industry has been challenged in the legal system and has faced
setbacks
[137]
in their cause to protect copyrighted music. Given the present situation with
protection of copyrighted music, RIAA opponents believe that the RIAA is
misdirecting its attention by focusing too narrowly on MP3s and Internet
piracy
[138],
rather than a bigger picture that focuses on the technology that is at the
consumers’ disposal and that makes Internet piracy possible.
- EXISTENCE OF INFRINGING TECHNOLOGY AND ITS AVAILABILITY TO CONSUMERS
- File-sharing networks (Napster, Morpheus,
Gnutella)
Referring back to Part II(A), the main part of the
copyright infringement controversy begins with the development and promulgation
of file-sharing or peer-to-peer networks. Second-generation P2P
networks
[139]
are decentralized file-sharing systems that facilitate the sharing and
downloading of MP3’s without the necessity of a centralized server through
which users’ computers link
through.
[140]
Current P2P file sharing programs allows users to search music file libraries of
other online
users
[141]
directly without the use of a web site because they connect directly to one
another from computer to
computer.
[142]
Individual users’ computers pass information from computer to computer,
relaying file inquiries and responses in a decentralized P2P
network.
[143]
Once the file is located, the user downloads the file using the file-sharing
software provided by the P2P networks, without requiring a central server to
index file
locations.
[144]Though
this file-sharing technology does have its share of non-infringing uses of
sharing research and scholarly works and make public works more accessible
through the Internet, P2P networks also provide for infringing uses in the
transferring and exchange of copyrighted works that have not been paid for.
Coupling this technology with consumer demands for music and the unwillingness
to pay for it when music files are freely available, file-sharing technology at
the disposal of consumers provides a means for consumers to carry out infringing
conduct. When considering the availability to consumers, file-sharing technology
plays a key role in the present copyright controversy over music files on the
Internet.
- CD encoding/decoding software
If the user has
downloaded the MP3s using a P2P network, digital multimedia software
companies,
[145]
such as Roxio, have developed software that allows users to convert MP3s into
WAV audio files (“decode”) and record (“burn”) them onto
blank CD media to make personal audio CDs equaling the digital quality of
original CDs. If the user, however, had original CDs, he/she could convert
(“rip”) the WAV audio files and into MP3s (“encode”)
using the same software, which then would be easier to manage because MP3s are
smaller files and would occupy less space on the user’s hard drive. There
is the possibility that with the greater consumption of MP3 players, the need
for converting MP3 to WAV becomes unnecessary, as more devices can now support
music in various formats with greater preference over smaller MP3 digital
files.
In the same way a user could download MP3s using a P2P network, the
user, who did purchase the original CD and ripped the songs and encoded them
into MP3s, could just as easily share those MP3s through the same P2P networks.
Other users, Users B and C, on the Internet at the same time as this particular
user, User A, would upload the MP3s from User A’s hard drive and download
the MP3s on Users B and C’s hard drive.
As an example, Roxio devised
this software technology and placed it into consumers’ hands. On the one
hand, this technology would have potential non-infringing uses to back up data
onto CDs, store large quantities of information that would not fit onto
traditional 1.44MB floppy disks, and make backup of CDs that were bought. All
these uses would not be considered infringing on copyright. However,
Roxio’s software, Easy CD & DVD Creator 6, has the potential for
infringing uses, such as the capability of ripping or encoding CD WAV files into
MP3s
[146].
The infringing use of Roxio’s software is that a consumer can use the
software to rip CD WAV files and place the MP3s on the Internet for any user to
download onto their own hard drive. Essentially, Roxio has placed the infringing
potential of CD recording software into the hands of its consumers who can
purchase their software for
$80.
[147]
- CD Recorder Drives
CD recorder drives play an integral
part in the copyright infringement
controversy.
[148]
These drives are necessary for infringers to burn pirated music onto blank CD
media with the use of CD recording software. In the same way that CD recording
software also has potential non-infringing uses, CD recorders are used to
facilitate those same non-infringing uses to backup data or to store large
quantities of information onto CDs. But these recording devices have the same
infringing uses for consumers who use them to record pirated material,
particularly MP3s or WAV files.
Manufacturers of CD recorder drives, such as
Iomega, have developed the capability to store data onto blank CDs. But the
recording drive’s capability to store information also allows consumers to
make personal audio
CDs.
[149]
Allowing consumers to make personal audio CDs begs the question that the
consumer who uses the recorder drive have audio files to create audio CDs. To be
non-infringing, the consumer would have had to have legally purchased the audio
CDs and then used the CD encoding/decoding software to rip the files from those
CDs so as to store them on their hard drive. Considering the millions of P2P
network users who exchange millions of audio files via the Internet, the
assumption that the audio files used to record CDs using the CD recorder drives
are legally purchased seems to be incredible. Because the millions of P2P users
and the millions of MP3s available on the Internet, CD recording drives play an
important and useful role in the copyright controversy as the media with which
users store and record/burn audio files onto CDs. At a price of $100 for an
external CD recording drive, the capacity to transfer digital audio files using
this device provides no obstacle to engage in infringing activity.
- POLICY CONCERNS
News headlines surrounding the copyright
infringement controversy related instances of the recording industry filing
lawsuits
[150]
against college
students
[151],
college
campuses
[152],
and most recently a 12-year old
girl.
[153]
Referring back to Part III(B), the recording industry’s pursuit of
individual infringers amounts to a continuous game of cat and
mouse
[154]
without really addressing the root of the problem of why consumers resort to
copyright infringement. Without addressing this question, the recording industry
is left to pursue the potential thousands of infringers on the
Internet
[155]
without putting an end to
infringement.
[156]
- Highly priced CD’s and minimal consumer
satisfaction
One reason why so many consumers resort to
infringing copyrighted music files and to face the risk of being sued by the
recording industry is because of the high cost of a CD and the minimal
satisfaction the consumers receive in return. Considering that music CDs cost
approximately between $15-20 offering 11-17 audio tracks, it would seem to be a
fairly good bargain-for-exchange. However, the major complaint heard from
consumers is that while they pay the $15-20 for the CD, not all the tracks are
to their liking. It is often that 2-3 tracks on the CD are “hits”
and become part of mainstream music, being played on radio stations. Though
CD’s have maintained the same costs prior to file-sharing, the advent of
file-sharing have spurred users to choose to download music illegally and for
free instead of paying for CDs. When consumers are now faced with such a
decision, which they didn’t have before file-sharing, to purchase a CD
with minimal satisfaction or the opportunity to download audio files with
maximum satisfaction for free, it becomes a bit more evident why consumers turn
to P2P networks and face the risk of copyright infringement lawsuits.
An
example concerns those who have been in recent headlines and named in
RIAA’s lawsuits: college students. Most college students or students in
general do not make an income, but money at their disposal is received from
their parents or through federal loans. Students are not generally a
“poorer” group, but a socio-economic group with less spending power.
The limited spending power configures into their decisions as to what they pay
for and, if it is a good possibility, what they can get for free. In relation to
file-sharing and file-downloading, it seems that there is greater temptation for
students to download for free rather than pay for them, though there are
students who claim to download music only to sample the music to later go and
buy the music.
Coupling the high price of purchasing CDs with the low
satisfaction that students receive from it, their complaints that only 2-3
tracks of the 11-17 tracks are worth listening to have continued to be voiced
since CD’s were sold. But now with the file-sharing technology available
in the face of such complaints, students are faced with the decision of whether
to make the purchase or not. While receiving this for free would be applicable
to almost everyone as opposed to paying for it, the recent numbers of students
who have been caught for copyright infringement seem that students are more
likely to choose to download music illegally than adults in light of the
possibility of copyright liability. Before the wave of lawsuits, students were
less concerned with the idea that they could be committing a crime by getting
music for free. First and foremost, getting music for free was an alternative to
paying $15-20 for a CD, and then downloading MP3s almost became a fad on college
campuses. Though after the lawsuits user downloading activity has dropped to a
certain extent, many continue to engage in the infringing activity. An article
in the Washington Post described the dip in downloading after the recent wave of
RIAA’s lawsuits, but the downloading has resumed after a brief
fall-off:
“[Lee] Rainie [director of Pew Internet
and American Life Project] said the limits of the association’s legal
campaign are evident in the recent increase in active music downloaders.
“In general it’s not a great long-term business strategy to sue your
customer base. There is a natural limit to how far even the aggressive legal
tactics of the RIAA can reach.”
The music industry has sued 1,977 people since last September, reaching
settlements with 432 suspected downloaders. The average settlement amount is
about $3,000, but the association can claim up to $150,000 for each pirated
song.
Greg Bildson, the chief operating officer of New York-based file-sharing
service Lime Wire, confirmed that the number of people using the service fell
after the RIAA filed its first lawsuits last September, but those numbers bobbed
up again within a few weeks.”
“BigChampagne, which tracks file-sharing use by tapping into the most
popular networks and recording the number of active users, has measured a steady
growth in activity every year, even after the RIAA began its legal barrage,
according to Eric Garland, chief executive of the Atlanta-based
company.
The peak number of users logged onto the top file-sharing networks at any
one time rose from 6.7 million last fall to more than 8.8 million in the first
few months of this year, Garland
said.”
[157]In
addition, in another article discussing the after effects of the RIAA’s
wave of lawsuits, there was a notable decline in file-transfers immediately
following the news of lawsuits. However, the decline has raised doubt that the
lawsuits have accomplished their goal to deter usage when users are turning to
other file-sharing means to continue downloading:
“Indeed, yet another survey -- completed
late last year by BayTSP, a company used by movie studios and recording
companies to monitor P2P usage -- did not uncover a noticeable difference in
usage after the first wave of suits were filed.
Instead, BayTSP noted that many online music downloaders had shifted to
such alternative technologies as eDonkey and BitTorrent, which are more
difficult for copyright holders to trace because they are set up to distribute
large
files.”
[158]It
would seem plausible for the recording industry to weigh and consider the effect
of CD costs and its relation to the copyright infringement controversy.
Determining the sources of the infringement problem and finding ways to respond
and resolve concerns and complaints would help to curb the activity, rather than
for the recording industry to resort to end-user lawsuits, which may be intended
to deter infringement, but do not go to the source of infringement. By suing
each individual infringer, the RIAA is not going to the source of copyright
infringement, but merely “cleaning up the mess”. While there are
laws in place to set the rules to deter infringement and the RIAA is making use
of them, the source in regards to digital music are the software, hardware, and
networking means that are made available to consumers, which have infringing
uses as already discussed. In addition, in regards to consumer tastes and
purchasing decisions, the option and availability for consumers to download
music illegally, that is, without paying for them, and having to pay for music
is inviting to infringement. This paper suggests that the RIAA look to
regulating, managing, and limiting the infringing uses and capabilities of the
hardware and networking, rather than deter infringement through costly and
time-consuming end-user litigation measures.
- RIAA wields unchecked ability to search consumer computers to bring suit
against them
Although the RIAA is a private entity whose
members create, manufacture and/or distribute approximately 90% of all
legitimate sound recordings produced and sold in the United States permitting
the industry the right to protect its interest, there has been
contention
[159]
that RIAA’s actions would indirectly violate the due process of the U.S.
Constitution.
[160]
There is also contention that RIAA’s actions would constitute an invasion
of privacy against individuals by conducting illegal searches on the
users’ hard drives to ultimately hold them liable for copyright
infringement.
[161]
While infringers make their computer hard drive available for other users to
search and download files, users intend to share and allow other users to search
under the impression that it is so share files. Users are giving other users a
sort of blanket permission to other users to search their files so that they can
share files with one another. However, the users are not granting a total
blanket permission to anyone and everyone if the purpose to search their hard
drive is other than to share files. The RIAA’s search is not for this
file-sharing purpose, but to compare files on the users’ hard drives with
those files they have on file to see if the music files are original or illegal
copies. It is this type of search that have raised concerns analogous to illegal
searches put in place to limit government action because of the lack of due
process made available for infringers to defend their action.
The recording
industry could be indirectly liable for violation of due process under the Fifth
Amendment utilizing the DMCA to subpoena ISPs compelling them to release their
customers’ identity for alleged infringing conduct. The Fifth Amendment
guarantees that no person will be deprived of life, liberty, or property,
without due process of
law.
[162]
As such it seems apparent that § 512(h) of the DMCA violates what the Fifth
Amendment prohibits in that it does not allow a subpoenaed party an opportunity
to object; it sanctions a pre-judgment seizure of property; and it places undue
burdens upon the subpoenaed party without due process of
law.
[163]
The subpoena issued under the DMCA is different from other subpoenas precisely
that the DMCA does not give the party being subpoenaed to object and explain,
but compels them without due process the information that is being demanded.
Under Rule 45 of the Federal Rules of Civil Procedure, a person who is
compelled to produce and permit inspection and copying may serve a written
objection to inspection or copying of the requested material on the party
stipulated in the subpoena. And if the objection to the subpoena is served, the
party serving the subpoena is not entitled to inspect and copy the
materials.
[164]
The recent RIAA
lawsuit
[165]
against
Verizon Internet Services, Inc. exemplifies § 512(h)’s
conflict with Rule 45 in denying Verizon the opportunity to object to the
subpoena, when it clearly has the ability to do so under the rule. The conflict
is more evident with Court of Appeals for the District of Columbia Circuit
Court’s recent ruling in deciding to remanding RIAA’s lawsuit to
have Verizon comply with the DMCA subpoena and vacating the district
court’s order to enforce one subpoena and to grant the ISPs motion to
quash another
subpoena.
[166]
Presently, the DMCA procedure for granting and compelling under the subpoena has
not been tested fully as to whether it is legal or not.
The issue of
invasion of privacy arises with the difficulty of identifying the anonymous user
allegedly pirating music. The methods that the RIAA employs to track copyrighted
music files on users’ hard drives may prove to be unconstitutional. Users,
by opening up their hard drive to the public to search and share files over the
Internet, still maintain a right to privacy over the contents of their hard
drive limiting the use of the contents to specific use of those contents. The
method uses a technical procedure that examines the song files on a user’s
computer and traces the digital fingerprint back to the former Napster
network.
[167]
The recording industry “disclosed its use of a library of digital
fingerprints, called “hashes,” that it can uniquely identify the MP3
files that had been traded on Napster going as far back as May
2000.”
[168]
The recording industry compares the digital fingerprints of the music file
against the fingerprints in their library, in doing so the RIAA believes that it
“can determine in some cases if someone has ripped the song from a legally
purchased CD or if it was downloaded from someone else over the
Internet.”
[169]
The point of contention is not so much the industry’s method of tracking
but searching the hard drive of a user’s computer. This would implicate
the Fourth Amendment assurance of a citizens’ reasonable expectation of
privacy.
[170]
It has been held that a warrantless search or seizure of a computer or computer
equipment by a nominally private party was attributable to the government for
purposes of Fourth Amendment
analysis.
[171]
A computer technician’s initial viewing of the hard drive of the
infringer’s computer along with the consequent discovery of infringing
material could be considered a private search analogous to the circumstances in
U.S. v. Barth, the court held that the technician’s subsequent
viewing of files on the hard drive was a governmental search for purposes of
Fourth Amendment
analysis.
[172]
If the inspection occurs without a warrant and the defendant has a reasonable
expectation of privacy, the evidence is subject to the exclusionary
rule.
[173]
The subpoena is not for the hard drives themselves, but the subpoenas are
sought, after unpermitted searches of a user’s hard drive to locate
illegal files. The subpoenas are then served on the ISPs to reveal the true
identity of the user. However, what is being contended is the initial searches
that the RIAA conducts that violates the right to privacy of users. In the
context of criminal infringement cases, the issue of whether users retain a
reasonable expectation of privacy to the contents of their hard drives. The
Tenth Circuit found that a reasonable expectation of privacy for the contents of
a computer hard drive to be
viable.
[174]
Recently, the RIAA has tried to include in an anti-terrorism bill, the USA
Act, the right for them to hack into anyone’s computer and delete illegal
MP3s.
“An RIAA-drafted amendment according
to a draft obtained by Wired News would immunize all copyright holders --
including the movie and e-book industry -- for any data losses caused by their
hacking efforts or other computer intrusions “that are reasonably intended
to impede or prevent” electronic piracy.”
“The RIAA’s interest in the USA Act,
an anti-terrorism bill that the Senate and the House approved last week, grew
out of an obscure part of it called section 815. Called the “Deterrence
and Prevention of Cyberterrorism” section, it says that anyone who breaks
into computers and causes damage “aggregating at least $5,000 in
value” in a one-year period would be committing a crime.”
“If the current version of the USA Act becomes law, the RIAA
believes, it could outlaw attempts by copyright holders to break into and
disable pirate FTP or websites or peer-to-peer networks. Because the bill covers
aggregate damage, it could bar anti-piracy efforts that cause little harm to
individual users, but meet the $5,000 threshold when combined.”
The RIAA is trying to legitimate its breaking into computers on the P2P
networks in the name of copyright protection, however, there are concerns that
allow the RIAA to conduct its searches and to destroy files to accomplish their
goal while freeing it of liability if computers and/or files were destroyed in
the process.
“Legal scholars say that the original
amendment the RIAA had been shopping around to members of Congress raises
privacy and security concerns.”
“It could lead to some really bad outcomes, like a program
purposefully intended to delete MP3s that misfunctions and erases everything on
a disk.”
“The draft amendment is
overly broad and poorly-written, says Orin Kerr, a former Justice Department
lawyer now at George Washington University. Says Kerr: “It would deny
victims their right to sue copyright owners and their agents if they engaged in
vigilante justice by hacking or other means in an effort to block online music
distribution.”
“Another troubling thing is that they appear to be
trying to limit their liability for consequential damages," says R. Polk Wagner,
an assistant professor at the University of Pennsylvania’s law school.
"What if their efforts caused your hard disk to become fatally
corrupted?”
The copyright controversy requires a holistic and
balanced
approach
[175],
neither giving the recording industry unchecked power to search an
individual’s hard drive and to deny due process to ISPs nor pulling the
rug out from under the recording industry and allowing copyright infringement to
run rampant, or stunt the growth of the Internet.
- ALTERNATIVES TO COPYRIGHT INFRINGEMENT
- Pay-per-download
In October 2000, Napster and BMG
agreed to develop a new business model using the peer-to-peer
network.
[176]
This model would amount to a “pay-for-play” service, where users
would be able to access music files for a monthly subscription fee and owners of
copyrighted works would receive royalties for this
use.
[177]
Although the partnership between Napster and BMG would limit the access to music
files owned by BMG, with the cooperation and participation of the four major
recording
companies
[178],
subscribers will have much of the same selection as they once did on the Napster
system. This type of business model would satisfy both ends of the copyright
controversy where users would pay for use of the copyrighted work in the form of
royalties and users would still have access to music files and P2P network
technology.
Similarly, in January 2003 Roxio bought the rights to Napster for
$5
million.
[179]
Considering that the Napster name is the world’s most recognizable name in
online music, Roxio plans are to modify the controversial music software that
allowed millions of users to freely swap and download copyrighted music files.
The plans for modification are to use the same technology of a centralized
server and its corresponding software for users to continue downloading music
files, legally. This time around Napster will charge its users a fee of $.99 for
each song they download or $9.95 for each album. This method, which has been
already in use by Apple, Wal-mart, etc., allows users to download individual
songs according to their tastes, without having to pay $15-20 for a CD they end
up unsatisfied with. At the same time, the users are paying for a private
license of the music and therefore not infringing on the copyrighted music.
Other positive aspects of such pay-per-download systems would foster
technological development of the music and computer industries as they come up
with new ideas together. In addition by taking a positive stance with P2P
technology and refining it for the benefit of all users, the technology will
help in other ways. One way P2P technology benefits the recording industry and
consumers is giving smaller, unknown artists and labels the exposure they need
without having to compete with larger established labels to break into the
recording
industry.
[180]
MP3s are not only valuable for independent smaller labels, but can also be a
useful and lucrative marketing tool for big labels as well, offering the
recording industry exposure to millions of P2P network
users.
[181]
The recording industry can use this as a means to test the waters with new
artists, types of music, etc before they actually produce the music. P2P
networks can be a money-saving enterprise and work for the benefit for all
users, be it the recording industry, artists, and consumers.
- Regulation and enforcement of copyright protection by P2P
providers
In recent news, the RIAA’s actions have
prompted P2P software providers to take a more active role in protecting
copyright. The former Scour.net had plans to debut a “son of
Napster” called Scour
Exchange
[182]
with the intent of abiding by the DCMA. One of its means to protect copyright
from being infringed is implementing its “three-strikes” policy,
where if a copyright holder notifies Scour Exchange about a particular user
three times, the company will kick off that user from its
network.
[183]
Another way for P2P technology to legitimately regulate and enforce
copyright protection is to use an encrypting an alarm code written into the MP3
files that would alert the end user that that particular MP3 file being
downloaded is not authorized by the copyright holder. This would avoid concerns
of Fourth Amendment illegal search and seizure because no one is searching a
user’s hard drive, but the file itself would alert the end user. However,
a second part of the alarm code that could have possible privacy concerns is
that the coded files could be tracked by the P2P network regulator that sends
programmed coding that search for these specially coded MP3s and locate those
that are pirating music files. In effect, if the regulator can determine that an
end user is pirating music, the use would be warned and given the opportunity to
be informed and make the decision to stop their activity, otherwise face
criminal charges. This would be another way for P2P networks to regulate the
activity of their users working in conjunction with copyright owners, and also
giving users to know that their activity is illegal and the chance to stop,
rather than slapping lawsuits and subpoenas and not resolving the situation on a
broader scale.
- Broadband regulation
An alternative idea to protecting
copyrights though not aimed at completely getting rid of illegal downloading
could be regulating broadband speeds. One of the sources for rampant illegal
downloading can be attributed to high-speed Internet connections. Due to the
size of MP3’s, and earlier modem Internet connections, users were
frustrated with downloading music with lost connections and waiting for
downloads that can take up to 45 minutes for one song. With the advent of
high-speed Internet connections with cable modem, DSL, and T1 networks, Internet
speeds increased greatly, and also increased downloads of illegal copies of
digital music files in conjunction with file-sharing software.
One idea is
to allow increased Internet speed for pay-per-download sites, allowing paying
customers to download their legally paid music faster, while slowing down
regular Internet connections for those that try to download “.mp3”
and “.wav” file extensions. There would be a need to develop search
engine technology to help weed out these type of extensions in relation with P2P
file-sharing software technology to help reduce copyright infringement. Without
going into further detail with all its complexities and whether this could
actually be viable, regulation of broadband speed and its relation to the high
demand for fast Internet connection to download and share numerous amounts and
copies of illegal MP3’s is a potential alternative to current litigation
practices targeting individual users.
- Radical Alternative Compensation System
More recently,
a Harvard law professor came up with a way of compensating artists despite the
copyright infringement occurring. This would not be a way to stop copyright
infringement, but until a better way is found to deal with copyright
infringement, but at a minimum compensate the artists for the infringement that
has occurred.
Terry Fisher proposes
that:
“an alternative compensation system
that would pay artists based on the popularity of their music. Artists would
first have to register their work with the copyright office, which would track
how many times that work was downloaded. Revenue generated from taxes on things
like Internet access and the sale of MP3 players would then be used to pay the
artists.”
“Fisher said his alternative model would allow
music fans to obtain more music for less money, without fears of legal action
from the RIAA. All artists would be paid better than they are under the current
regime.”
[184]
- CONCLUSION
The Greek historian Plutarch gave the oldest clear
definition of piracy, describing pirates as those who attack without legal
authority not only ships but maritime
cities.
[185]
The RIAA analogizes college students, a 12-year old girl, and countless other
individuals as modern-day pirates who attack the recording industry without
legal authority and commandeer MP3s for their own use. While their cause to
protect copyrighted music files is valid, the manner in which they have
proceeded is ineffective and ultimately unsuccessful. The purpose of resolving
the issue of copyright infringement is not to place blame on one group of people
or industry and to punish them. Modern day copyright infringement has growingly
become a complex issue with various factors and players interwoven by the
Internet.
While lawsuits against individuals and subpoenas served on ISPs
may temporarily serve to deter potential copyright infringers from continuing
with their infringing conduct, the larger issue of copyright infringement will
not be adequately addressed. Copyright infringement does not exist at the level
between the recording industry and the individual users, but involves many
layers and facets of society. To adequately address copyright infringement
requires the collaboration and participation of all those that play a
significant role in relation to copyrights, such as the recording and
entertainment industries, artists, P2P technology developers, computer software
programmers, computer hardware manufacturers, consumer advocates, economists,
government officials, etc. All of these groups need to focus on the broader
problem and focus on ways to resolve issues at the source of the problems. In
addition to finding ways to resolve these issues also requires alternative ways
for current technology to work harmoniously with the entertainment industry and
work into mainstream culture, rather than lash out at the development of
technology because of the infringing uses they are used for.
The fact is the
Internet and the development of computer technology are here to stay. In the
same way, infringers and hackers will continue to find ways to get around the
system and break rules when new rules are put in place. The challenge will be
for the developing field of copyright law to effectively and efficiently respond
to and deal with a rapid evolution and development of information technology.
[1]
Piracy,
available at http://www.bartleby.com/65/pi/piracy.html.
[2]
See A U.S. Snapshot: More Diverse, Computer-Savvy, CNN.COM, March
30, 2001,
available at http://www.cnn.com/2001/US/03/30/census.snapshot/.
[3]
See Alan Schwarz,
Take Me Out to the Website!, NEWSWEEK, October
14, 2002, at 38F.
[4]
Anick Jesdanun,
2 in 5 Web Users Have Broadband at Home, AP TECHNOLOGY,
April 18, 2004,
available at
http://story.news.yahoo.com/news?tmpl=story&u=/ap/20040418/ap_on_hi_te/broadband_study.
[5]
See John Borland,
RIAA Sues 261 File Swappers, CNET NEWS.COM,
Sept. 8, 2003
available at
http://news.com.com/2100-1023-5072564.html?tag=nl, (for an article detailing the
most recent wave of lawsuits filed by the RIAA against individuals for copyright
infringement).
[6]
See John Borland,
RIAA Settles With 12-Year Old Girl, CNET
NEWS.COM, Sept. 9,2003,
available at
http://news.com.com/2100-1027-5073717.html?tag=nl, for an article detailing the
settlement the 12-year old girl reached with the RIAA from its recent wave of
lawsuits targeting copyright infringers.
[7] 17
U.S.C. § 504(c) (2002), s
ee also Ted Bridis,
Music Industry
Unveils Tracking Methods, YAHOO! NEWS, Aug. 27, 2003,
available at
http://news.yahoo.com/news?tmpl=story2&cid=495&u=/ap/20030827/ap_en_mu/downloading_music,
for a recent article on the RIAA using tracking methods to identify pirated
music files on a woman’s computer and RIAA’s plan to file lawsuits
with penalties allowed by copyright law.
[8]
See Borland,
supra note 2. “According to the RIAA, most of
the people sued Monday were sharing 1,000 songs or more on the file-swapping
networks.”
[9]
See supra note 2. (“Few of the suits are likely to go to trial,
however. In the RIAA’s previous round of copyright suits, filed against
four university students in April, each defendant quickly settled, agreeing to
pay damages of between $12,000 and $17,000. Many of today’s defendants are
also likely to settle.”).
[10]
See supra note 2. (“Sherman said ‘a handful’ of
defendants had already agreed to preliminary settlement agreements, averaging
payments of about $3,000 apiece.”).
[12]
See Associated Press,
Napster, But in Name Only, WIRED.COM, July
28, 2003,
available at
http://www.wired.com/news/digiwood/0,1412,59798,00.html, on recent news of
Roxio’s acquisition of Napster, and its plans to rollout Napster 2.0,
which charges its users a price for each song they download.
[13]
See Verizon Internet Services,
supra note 11 at 4.
[14]
See Moving Picture Experts Group Homepage,
available at
http://www.cselt.it/mpeg (visited Jan. 17, 2004) (describes the nature and
functions of MPEG).
[15]
See Recording Industry Association of America v. Diamond Multimedia
Systems, Inc., 180 F.3d 1072, 1074 (1999). [hereinafter Diamond Multimedia
Systems, Inc.]
[16]
MP3,
available at http://www.webopedia.com/TERM/M/MP3.html.
[17]
See Diamond Multimedia Systems, Inc., 180 F.3d at 1074.
[18]
WAV,
available at
http://whatis.techtarget.com/definition/0,,sid9_gci213473,00.html.
[19]
Kristine J. Hoffman,
Fair Use or Fair Game? The Internet, MP3, and Copyright
Law, 11 ALB. L.J. SCI & TECH. 153, 15 (2000).
[20]
See Aaron M. Bailey,
Comment: A Nation of Felons?: Napster, the Net
Act, and the Criminal Prosecution of File-Sharing, 50 AM. U. L. REV. 473,
479 (2000).
[21]
Ines G. Gonzalez,
BERKELEY TECHNOLOGY LAW JOURNAL ANNUAL REVIEW OF LAW AND
TECHNOLOGY: I. INTELLECTUAL PROPERTY: A. COPYRIGHT: 4. Infringement: a) Audio
Home Recording Act: Recording Industry Association of America, Inc. v. Diamond
Multimedia Systems, Inc., 15 BERKELEY TECH. L.J. 67, 70 (2000).
[22]
See http://computer.howstuffworks.com/napster1.htm, for a brief
description on how its founder, Shawn Fanning, came up with the idea for
Napster, and the subsequent pages give a detailed description on how Napster
worked.
[23]
Scour.net,
available at
http://www.internetnews.com/bus-news/article.php/37661.
[24]
See http://www.dailybruin.ucla.edu/db/issues/00/03.07/ae.mycaster.html,
for a history of the development of Scour with the primary focus to search for
multimedia files.
[25]
Hisanari Harry Tanaka,
Article: Post-Napster: Peer-To-Peer File Sharing
Systems: Current And Future Issues On Secondary Liability Under Copyright Laws
In The United States And Japan, 22 LOY. L.A. ENT. L. REV. 37, 49 (2001)
(describing the characteristics and differences between centralized and
decentralized P2P file-sharing systems).
[26]
See http://scour.sixpak.org/html1/about.phtml, for how Scour.net operates
as a search engine for multimedia files on the Internet.
[27]
Lou Dolinar,
Napster Not Only Way to Swap a Song; Recording Firms Want
Payment, CHI. TRIB., Apr. 30, 2001, at Business 3, LEXIS, News.
[28]
See Verizon Internet Services, Inc.,
supra note 11 at 4.
[29]
Lisa M. Zepeda,
I. Intellectual Property A. Copyright: 1. Digital Media: d)
Digital Music Distribution: A&M Records, Inc. v. Napster, Inc., 17
BERKELEY TECH. L.J. 71, 72 (2002).
[30]
See Karen Heyman,,
Pandora’s Box: Napster Unleashes Whole New
Net Ballgame,
available at http://www.laweekly.com/ink/00heyman.shtml
(visited Jan. 17, 2004) (“The [Napster] software indexes he MP3s
you’ve got on your hard drive, then connects to the Napster server and
makes your tracks available to anybody who’s hooked up at the time –
from your hard drive, not from the Napster server.”).
[31]
Chris Sherman,
NAPSTER: Copyright Killer or Distribution Hero?, ONLINE,
November 2000.
[32]
A&M Records v. Napster, Inc., 239 F.3d 1004 (2001).
[33]
See http://web.utk.edu/~smarcus/History.html, for a timeline of
Napster.
[34]
See Verizon Internet Services, Inc.,
supra note 11 at 4.
[35]
See http://www.ugo.com/channels/music/features/napsteralternatives/, for
a brief description and the pros and cons for several alternatives to Napster
that have made its way onto the Internet to replace Napster.
[36]
Tanaka,
supra note 25, at 49.
[37]
Sherman,
supra note 31.
[38]
See Verizon Internet Services, Inc.,
supra note 11.
[39]
Tanaka,
supra note 25, at 41.
[40]
Sherman,
supra note 31.
[42]
See http://en2.wikipedia.org/wiki/Gnutella, for a history and description
of Gnutella.
[43]
See Damien A. Riehl, Electronic
Commerce in the 21st
Century: Article Peer-to-Peer Distribution Systems: Will Napster, Gnutella, and
Freenet Create a Copyrighted Nirvana or Gehenna?, 27 WM. MITCHELL L. REV.
1761, 1776 (2001).
[44]
See Ben Charney and John Borland,
Is There Room on the Net for
P2P?, CNET NEWS.COM (Feb. 13, 2001),
available at
http://news.com.com/2009-1023-252549.html.
[46]
See 17 U.S.C. § 107 (2003). (“Notwithstanding the provisions of
sections 106 and 106A, the fair use of a copyrighted work, including such use by
reproduction in copies or phonorecords or by any other means specified by that
section, for purposes such as criticism, comment, news reporting, teaching
(including multiple copies for classroom use), scholarship, or research, is not
an infringement of copyright.”).
[47]
See A&M Records, Inc. v. Napster, Inc., 114 F. Supp. 2d 896, 912
(2000).
[50]
See MGM Studios, Inc. v. Grokster, Ltd., 259 F. Supp. 2d 1029
(2003).
[51]
See Brad King,
File-Trading Furor Heats Up, Wired.com,
available at http://www.wired.com/news/politics/0,1283,4120,00.html (July
25, 2002).
[52]
See Bailey,
supra note 20.
[53]
See MGM Studios, Inc. 259 F. Supp. 2d at 1041.
[55]
See Recording Industry Association of America v. Verizon Internet
Services, 240 F. Supp. 2d 24 (2003).
[57]
See John Borland, CNET NEWS.COM,
available at
http://news.com.com/2100-1025_3-5066754.html?tag=st_rn. (“The RIAA has
used court orders to try to identify more than 1,000 computer users it alleges
have been offering copyrighted songs on file-trading networks. It plans to use
the information gained to file copyright lawsuits against the
individuals.”).
[58]
See supra note 2. (“It is simply to get peer-to-peer users to stop
offering music that does not belong to them.”)
[59]
See supra note 53. (“The legal motion, filed in Washington, D.C.,
federal court by a ‘Jane Doe’ Internet service subscriber, is the
first from an individual whose personal information has been subpoenaed by the
Recording Industry Association of America in recent months.”).
[60]
See Verizon Internet Services, Inc.,
supra note 11 at
18-19.
[61]
See Zepeda,
supra note 29 at 71;
see generally Shawn D.
Chapman,
Pushing the Limits of Copyright Law and Upping the Ante in the
Digital World: The Strange Case of A&M Records, Inc. v. Napster, Inc.,
89 KY. L.J. 793, 808 (2001).
[62]
See Recording Industry Association of America,
supra note 55;
Recording Industry Association of America v. Verizon Internet Services, 257 F.
Supp. 2d 244 (2003); Ashbel S. Green,
Net Piracy Law Gets First Conviction:
UO Student, PORTLAND OREGONIAN, Aug. 21, 1999, at A1; Bill Miller,
Giveaways Costly for Web Pirate, WASHINGTON POST, Dec. 23, 1999, at B1;
Scott Craven,
"Phantom Menace" Case May Test Laws, Ariz. Republic, Sept.
22, 2000, at B1.
[63]
See John Borland,
Court Blocks Some File Trading Subpoenas, CNET
News.com, August 8, 2003,
available at
http://news.com.com/2100-1027_3-5061868.html?tag=st_rn.
[64]
See John Borland,
ISP Group Challenges RIAA Subpoenas, CNET
News.com, August 11, 2003,
available at
http://news.com.com/2100-1027_3-5062372.html?tag=st_rn.
[65]
See John Borland,
File Swapper Fights RIAA Subpoena, CNET
News.com, August 21, 2003,
available at
http://news.com.com/2100-1025-5066754.html?tag=sas_email.
[66]
See http://www.riaa.com/about/default.asp, for a brief description about
RIAA and their mission statement to protect music copyright.
[67]
See Ashbel S. Green,
Net Piracy Law Gets First Conviction: UO
Student, PORTLAND OREGONIAN, Aug. 21, 1999, at A1; Bill Miller,
Giveaways
Costly for Web Pirate, WASHINGTON POST, Dec. 23, 1999, at B1; Scott Craven,
"Phantom Menace" Case May Test Laws, Ariz. Republic, Sept. 22, 2000, at
B1.
[69]
See John Borland,
RIAA Sues Campus File-Swappers, CNET NEWS.COM,
April 3, 2003,
available at
http://news.com.com/2100-1027-999332.html?tag=nl, for an article detailing
settlements for online piracy of four college students with the RIAA from
lawsuits in May 2003.
[70]
See David McGuire,
RIAA Sues Song-Swapping Suspects,
WASHINGTONPOST.COM, Jan. 21, 2004,
available at
http://story.news.yahoo.com/news?tmpl=story&u=/washpost/20040121/tc_washpost/a35281_2004jan21
(“The recording industry today reignited its legal campaign against online
piracy, filing four lawsuits that target 532 people accused of illegally
swapping copyrighted music on the Internet. The Recording Industry Association
of America’s (RIAA) legal salvo is the first since a federal appeals court
ruling last month restricted the group's ability to track down the identities of
suspected file sharers. Three of the lawsuits were filed in federal court in New
York City, while the fourth was filed in the Washington, D.C., federal court.
‘The message to illegal file sharers should be as clear as ever we can and
will continue to file lawsuits,’ said RIAA President Cary Sherman in a
telephone conference with reporters today. The lawsuits were filed after a
three-judge panel on the U.S. Court of Appeals for the D.C. Circuit ruled on
Dec. 19 that the 1998 Digital Millennium Copyright Act does not grant the RIAA
special subpoena power to obtain the names of several Verizon Internet customers
believed to be trading files online.”).
[71]
A&M Records v. Napster, Inc., 239 F.3d 1004 (2001).
[72]
MGM Studios, Inc. 259 F. Supp. 2d 1029.
[75]
Matthew Amedeo, Comment:
Shifting the Burden: the Unconstitutionality of
Section 512(h) of the Digital Millennium Copyright Act and Its Impact on
Internet Service Providers, 11 COMMLAW CONSPECTUS 311, 311 (2003).
[76]
MGM Studios, Inc., 259 F. Supp. 2d at 312.
[77]
Recording Industry Association of America v. Verizon Internet Services, 240 F.
Supp. 2d 24 (2003).
[78]
See Associated Press,
One ISP Refuses to Yield, Wired.com, July
31, 2003,
available at
http://www.wired.com/news/business/0,1367,59844,00.html (“SBC
Communications has joined a battle with the recording industry in a lawsuit that
questions the constitutionality of the industry’s effort to track online
music swappers. In a complaint filed Wednesday in a U.S. district court , SBC
unit Pacific Bell Internet Services alleges that many of the subpoenas served
against it by the Recording Industry Association of America were done so
improperly.”).
[79]
See Symposium,
Symposium beyond Napster: Debating the Future of
Copyright on the Internet: Introductory Remarks, 50 AM. U.L. REV. 355,
360-361 (2000).
[80]
See INFORMATION INFRASTRUCTURE TASK FORCE, INTELLECTUAL PROPERTY AND THE
NATIONAL INFORMATION INFRASTRUCTURE: THE REPORT OF THE WORKING GROUP ON
INTELLECTUAL PROPERTY RIGHTS 7 (1995).
[81]
17 U.S.C. § 512 (2003).
[82]
See Pamela Samuelson, Symposium,
Intellectual Property and the Digital
Economy: Why the Anti-Circumvention Regulations Need to be Revised, 14
BERKELEY TECH. L.J. 519, 519 (1999).
[83]
17 U.S.C. § 512 (2003).
[84]
17 U.S.C. § 1204 (2003).
[85]
17 U.S.C. § 1201 (2003).
[86]
17 U.S.C. § 1202 (2003).
[87]
17 U.S.C. § 512 (2003).
[88]
See Digital Performance Right in Sound Recording Act,
available
at, http://www.copyright.gov/legislation/pl104-39.html, for the actual text
of the act;
see also Recording Artists’ Coalition website,
available at, http://www.recordingartistscoalition.com/issues.html, for
an explanation of why the DPRSRA does not help artists (visited Jan. 18,
2004).
[89]
See The Digital Millennium Copyright Act of 1998, U.S. Copyright Office
Summary 16 (Dec. 1998) (visited Jan. 17, 2004),
available at,
http://www.loc.gov/copyright/legislation/dmca.pdf (stating that the DMCA was
necessary to expand copyright protection to producers and performers because of
the increase in transmission of digital sound recordings in recent
years).
[90]
See 17 U.S.C. § 512(a)-(d) (2003).
[92]
Religious Technology Center v. Netcom On-Line Communication Services, Inc., 907
F. Supp. 1361 (1995).
[93]
Id. at 1370-71. (“This court holds that the storage on a
defendant’s system of infringing copies and retransmission to other
servers is not a direct infringement by the BBS operator of the exclusive right
to reproduce the work where such copies are uploaded by an infringing
user.”).
[94]
Id. at 1368-70. (“There is no need to construe the Act to make all
of these parties infringers. Although copyright is a strict liability statute,
there should still be some element of volition or causation which is lacking
where a defendant’s system is merely used to create a copy by a third
party.”).
[95]
Id. at 1373. (“Liability for participation in copyright
infringement will be established where the defendant, with knowledge of the
infringing activity, induces, causes, or materially contributes to the
infringing conduct of another.”).
[96]
Id. at 1375. (“A defendant is liable for vicarious liability for
the actions of a primary copyright infringer where the defendant: (1) has the
right and ability to control the infringer’s acts and, (2) receives a
direct financial benefit from the infringement. Unlike contributory
infringement, knowledge is not an element of vicarious
liability.”).
[97]
17 U.S.C. § 512 (The DMCA provides four non-exclusive safe harbors for
qualifying ISPs. Each provision addresses a different ISP function: (a)
Transitory digital network communications: Provides protection for an ISP
“transmitting, routing, or providing connections for, material through a
system or network controlled or operated by or for the service provider . .
.”; (b) System Caching: Limits the liability of a an ISP for caching,
defined as the “temporary storage of material on a system or
network”; (c) User storage: Protects an ISP who stores, at the direction
of a user, material on a system controlled or operated by the ISP; (d)
Information location tools: Protects an ISP for referring or linking users to an
on-line location containing infringing material or activity).
[98]
See generally Jonathan A. Friedman & Francis M. Buono,
Using the
Digital Millennium Copyright Act to Limit Potential Copyright Liability
Online, 6 RICH. J.L. & TECH. 18, (Winter 1999-2000),
available
at, http://www.richmond.edu/jolt/v6i4/article1.html.
[99]
17 U.S.C. § 512(c)(1)(ii) and (d)(1)(B) (2003).
[100]
17 U.S.C. § 512(b)(2)(E), (c)(1)(C), (c)(3), (d)(3), (g) (2003).
[101]
17 U.S.C. § 512(a) (2003).
[102]
17 U.S.C. § 512(b) (2003) (“(1) the material having been made
available on the Web by someone other than the ISP; (2) the material being
transmitted at the direction of someone other than the ISP; and (3) the storage
occurring as part of an automatic process for the purpose of making it available
to the users.”).
[103]
17 U.S.C. § 512(c)(1)(A) (2003).
[104]
17 U.S.C. § 512(c)(1)(C) (2003).
[105]
17 U.S.C. § 512 (d)(1)(A) (2003).
[106]
17 U.S.C. § 512 (d)(1)(C) (2003).
[107]
17 U.S.C. § 512(h) (2003).
[108]
17 U.S.C. § 512(h)(3) (2003).
[109]
17 U.S.C. § 512(c)(3)(A)(v) (2003).
[110]
17 U.S.C. § 512(c)(3)(A) (2003).
[111]
See generally 17 U.S.C. § 512 (2003).
[112]
17 U.S.C. § 512(a)-(d) (2003).
[113]
See A&M Records, Inc. v. Napster, Inc., 114 F. Supp. 2d 896, 918
(2000).
[114]
See A&M Records, Inc., 239 F.3d at 1022.
[116]
Bailey,
supra note 20 at 506.
[117]
See 17 U.S.C. 107 (2003).
[118]
See 17 U.S.C. § 107 (2003) (“Reproduction in copies or phonorecords
... for purposes such as... scholarship, research, is not an infringement of
copyright.”).
[119]
See United States v. LaMacchia, 871 F. Supp. 535, 545 (1994).
[120]
See Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S.
539, 562 (1985).
[121]
See Karen Bernstein,
The No Electronic Theft Act: The Music
Industry’s New Instrument in the Fight Against Internet Piracy, 7 UCLA
ENT. L. REV. 325, 325-26 (2000).
[122]
See A&M Records, Inc., 114 F. Supp. 2d at 911.
[123]
See Martin F. Halstead,
Comment: The Regulated Become the Regulators
– Problems and Pitfalls in the new World of Digital Copyright
Legislation, 38 TULSA L.REV. 195, 221 (2002).
[124]
Bailey,
supra note 20 at 514.
[125]
See Bailey,
supra note 20 at 513-24.
[126]
Michelle A. Ravn,
Note: Navigating Terra Incognita: Why the Digital
Millennium Copyright Act Was Needed to Chart the Course of Online Service
Provider Liability for Copyright Infringement, 60 OHIO ST. L.J. 755, 758
(1999).
[127]
Bailey,
supra note 20 at 524-30.
[128]
See Barak D. Jolish,
Scuttling the Music Pirate: Protecting Recordings
in the Age of the Internet, 17 ENT. & SPORTS LAW 9, 10 (1999)
(“Ultimately, however, bringing copyright suits against those who post
pirated music will be of only limited utility. As mentioned above, it already is
difficult to find pirate web sites, which crop up and disappear within very
short periods of time.”).
[129]
See Tom Spring,
Surfing with U.S. Customs, CNN.com, Oct. 20, 1999,
available at, http://www.cnn.com/TECH/computing/9910/20/us.customs.idg/.
(“While it takes little time to find illegal sites, it takes weeks or
months to gather evidence, identify the owner, and shut down a
site.”).
[133]
See supra notes 3 and 8.
[134]
See Patrick Allossary,
Clickety Click and the Music is Illegal,
NATIONAL POST, Feb. 11, 2000, at C3.
[135]
Inquirer Staff,
RIAA Will Take 2191.78 Years to Sue Everyone, THE
INQUIRER,
available at http://www.theinquirer.net/?article=10733.
[136]
See Jolish,
supra note 117.
[137]
See Verizon Internet Services, Inc.,
supra note 11.
[138]
See Judy Bryan,
Broadcast.com: MP3 Will Die, WIRED.COM, March 15,
1999,
available at http://www.wired.com/news/culture/0,1284,18453,00.html
(“Pirates are going to find a way to distribute illicitly, no matter what
defenses companies create to safeguard music.”); Jennifer Sullivan,
MP3: A Flash in the Pan, WIRED.COM, April 19, 1999,
available at
http://www.wired.com/news/culture/0,1284,19189-2,00.html?tw=wn_story_page_next1.
[139]
Tanaka,
supra note 25, at 49.
[140]
Sherman,
supra note 31.
[141]
See Verizon Internet Services, Inc.,
supra note 11.
[142]
Tanaka,
supra note 25, at 41.
[143]
Sherman,
supra note 31.
[145]
Digital multimedia software companies such as Roxio (www.roxio.com), Nero
(www.nero.com), Magix (www.magix.com), Voyetra (www.voyetra.com), and
MusicMatch, Inc.(www.musicmatch.com).
[146]
Easy CD & DVD Creator 6,
available at
http://www.roxio.com/en/products/ecdc/features.jhtml, describes one of its
features as, “Includes a player, media manager, ripper, tag and sound
editor - integrated in a single application.
Create greatest hits CDs,
preserve your old LPs and cassettes in digital format, enhance your tracks with
sound effects and more.
Encrypt MP3s and transfer them to your portable
device to take your music anywhere.”).
(emphasis added)
[148]
See Matthew Green,
Note: Napster Opens Pandora’s Box: Examining
How File-Sharing Services Threaten the Enforcement of Copyright on the
Internet, 63 OHIO ST. L.J. 799, 804 (2002);
cf. Stephan K. Bayens,
Article: The Search and Seizure of Computers: Are We Sacrificing Personal
Privacy for the Advancement of Technology?, 48 DRAKE L. REV. 239, 258-66
(2000) (author discusses the implication of Fourth Amendment issues of illegal
search and seizure in relation to the development of computer
technology).
[149]
Iomega,
available at
http://www.iomega.com/na/products/product_family.jsp?FOLDER%3C%3Efolder_id=63235&ASSORTMENT%3C%3East_id=63191&bmUID=1074571823362
(describes the uses for its recorder drive, “Iomega CD-RW optical drives
are the perfect complement to any hard drive. They read, write, or rewrite most
types of CD formats, making it a powerful tool that can be used for countless
applications, including the
creation of custom music CDs, digital photo
albums, family history archives and
customized audio CDs.”).
(emphasis added)
[152]
See Katie Dean,
Schools Rebuke Music Biz Demands, WIRED.COM, Jul.
23, 2003,
available at
http://www.wired.com/news/digiwood/0,1412,59726,00.html (“MIT has received
one subpoena and Boston College has received three subpoenas requesting the
names and addresses of individuals who allegedly shared copyright music on the
schools’ networks.”).
[154]
See Kristine J. Hoffman,
Comment: Fair Use or Fair Game? The Internet,
MP3 and Copyright Law, 11 ALB. L.J. SCI. & TECH. 153, 161
(2000).
[155]
See Zepeda,
supra note 29 at 74.
[156]
See Inquirer staff,
supra note 134.
[157]
David McGuire,
Americans Head Back Online for Music, WASHINGTONPOST.COM,
available at
http://story.news.yahoo.com/news?tmpl=story&u=/washpost/20040426/tc_washpost/a41467_2004apr25.
[158]
Erika Morphy,
Illicit Music Swapping on the Decline?, WWW.NEWSFACTOR.COM,
April 27, 2004,
available at
http://story.news.yahoo.com/news?tmpl=story&u=/nf/20040427/tc_nf/23834.
[159]
See Katie Dean,
Senator Takes a Swing at RIAA, WIRED.COM, Sept.
17, 2003,
available at
http://www.wired.com/news/politics/0,1283,60461,00.html. (“Brownback said
the DMCA subpoena process raises serious privacy and due-process concerns.
‘There are no checks, no balances, and the alleged pirate has no
opportunity to defend themselves,’ Brownback said when introducing the
bill. ‘My colleagues, this issue is about privacy, not
piracy.’”).
[160]
See Amadeo,
supra note 75 at 317-24.
[161]
See Bailey,
supra note 20 at 524-30.
[162]
U.S. CONST., amend. V.
[164]
See FED. R. CIV. P. 45 (c)(2)(B).
[165]
See Recording Industry Association of America v. Verizon Internet
Services, Inc.,
supra note 55.
[166]
See Verizon Internet Services, Inc.,
supra note 11.
[167]
See Ted Bridis,
RIAA Reveals Method to Madness, WIRED.COM, August,
28, 2003,
available at
http://www.wired.com/news/digiwood/0,1412,60222,00.html.
[170]
See Katz v. United States, 389 U.S. 347, 351 (1967) (holding that Fourth
Amendment protections are limited to that which a citizen “seeks to
preserve as private, even in an area accessible to the
public.”).
[171]
See Robin Cheryl Miller, Validity of Search or Seizure of Computer, Computer
Disk, or Computer Peripheral Equipment, 84 A.L.R. 5
th 1, 15
(2000).
[173]
See generally Mapp v. Ohio, 367 U.S. 643, 646-60 (1961) (holding that the
exclusionary rule applies to Fourth Amendment violations by states; Weeks v.
United States, 232 U.S. 383, 388-98 (1914) (discussing the rationale of
excluding evidence resulting from tainted searches).
[174]
See United States v. Campos, 221 F.3d 1143, 1148 (2000) (compelling
officers to obtain warrants to search the contents of hard drives and further
requiring officers to “engage in the intermediate step of sorting various
types of documents and then only search the ones specified in a
warrant.”).
[175]
See Joseph Levi,
Will Online Service Provider Liability Unravel the
Web?, 477 PLI/PAT 547, 547 (1996) (discussing steps OSPs may take to
minimize their infringement liability in the absence of a statutory liability
limitation).
[176]
See Maggie A. Lange,
Digital Music Distribution Technologies Challenge
Copyright Law, 45 APR. B. B.J. 14, 31 (2001).
[177]
See Ryan C. Edwards,
Who Said Noting in this World is Free? A&M
Records, Inc. v. Napster, Inc.: Problems Presented, Solutions Explored, and
Answers Posed, 89 KY. L.J. 835, 877 (2001).
[178]
See Heather D. Rafter,
Streaming Into the Future: Music and Video
Online, 611 PLI/PAT 395, 398 (The five major recording companies include:
BMG Entertainment, Sony Music, Warner Music Group, EMI Recorded Music, and
Universal Music Group.)
[180]
See Reuters,
Big Label Embraces MP3, WIRED.COM, Nov. 4, 1998,
available at http://www.wired.com/news/culture/0,1284,16034,00.html
(pointing out that even though major labels fear the loss of millions of dollars
in royalties, independent labels embrace the MP3 technology).
[181]
See Chris Oakes,
Research: MP3s Sell CDs, Wired.com, July 19,
1999,
available at
http://www.wired.com/news/business/0,1367,20805,00.html.
[182]
See http://zdnet.com.com/2100-11-519707.html?legacy=zdnn, for a complete
description of what the software is and how it works in comparison to
Napster.
[183]
See http://www.fitug.de/debate/0004/msg00088.html.
[184]
Katie Dean,
New Spin on the Music Business, WIRED.COM, May 15, 2004,
available at
http://www.wired.com/news/digiwood/0,1412,63474,00.html?tw=wn_tophead_2.
[185]
See Krzysztof Wilczy_ski,
Introduction to History of
Piracy, Jan. 21, 2004,
available at
http://www.piratesinfo.com/history/history.php.