Chapter 29
Cyberspace: Napster and the Code of the Wild West Revisited
For a time during the past few years, it seemed as though technology was changing so fast that it was hard to imagine a set of rules that could bind the marketplace. Indeed, the Internet, discovered as a friendly environment by scientists and hackers, was transformed into the newest mass media. Tens of millions of people learned the ease of turning on and tuning in to the information explosion at their desktops. Even some politicians have been known to sing its praises. To comprehend where we are, we need to understand where we have come from. To do that, we scroll back a few years.
The Promise of the Internet
The promise of the Internet—the code word for interconnected networks, including the special one run by complex rules established by the U.S. government —could be summarized very briefly: It enabled anyone to be a publisher. Unlike every other mass medium, for which a hefty investment in infrastructure was required and for which only the investor was able to control content, the Internet and its related online service companions demand only minimal commitment of resources. For a modest sum, anyone could acquire a serviceable computer, a modem, and a service connection, permitting interaction with others. With software that enabled e-mail or by establishing an Internet address (domain name) communication with a broad universe became possible. As participants in a new democratic means of communications that required little financial stake in its publishing infrastructure, users did not absorb or feel committed to the legal principles that guided traditional media (print publishing) and new media (cable and satellite). As the Internet grew in commercial popularity, it was being compared to the prospector days of the Wild West: No rules applied. Anything goes.
Then, some people and businesses started to get burned. Famous trademarks were being taken by upstarts and used as domain names without clearance. Content was being shared without regard to traditional publishing procedures and pricing. Digital files containing music and films were being silently, swiftly, and electronically transmitted across international data highways. With the explosive growth of the Internet came a backlash. The essence of the legal debate—predominantly a copyright debate but with important echoes of trademark, privacy, and trade secrets—is that many users of cyberspace can too easily publish materials or information belonging to others without restraint. Popular software programs, famous pictures, stories or articles, entire books, the latest CDs by popular musical groups, even first-run movies—all could be transferred without the owner's knowledge and with no compensation to the creator. Not only do such practices fly in the face of traditional legal standards, they also could wreck the economic base on which the very essence of creativity is built.
Culture Clash: Copyright Owners and I-Gen
A culture clash occurred between the copyright-owning community, some creators, and the Internet generation, or the I-Gen. The I-Gen believes that access should be universal and sharing should be free. The copyright-owning community believes access should be controlled and copying paid for. Some creators who challenge traditional means of distribution (e.g., the established record labels), side with the I-Gen. For these creators, the opportunity to have one's work and ideas freely circulate is more important than initial compensation. If one gains in popularity by such exposure, then financial rewards will follow, these creators believe. Thus, the battle lines were drawn. At the core of the legislative debate over passage of the DMCA was essentially the issue of access. As discussed in Chapters 9, controlling access to digital works is the significant contribution of the DMCA. By allowing owners to restrict access, even in the face of long-respected limitations on rights of copyright owners to prevent certain uses of works, the DMCA carved out new and contentious ground that will be tested by the I-Gen view of the world. For the present time, access controls are at the heart of the new copyright regime.
Among the clashes that have marked the early days of the DMCA are these:
- IcraveTV.com. This website in Canada streamed video of U.S. television stations without permission. Under one interpretation of Canadian law, the practice was permitted. But U.S. broadcasters and programming and sports interests challenged the site, claiming that their copyrighted programs were being recycled without consent. Because the site secured a domain name from a U.S.-based registry, they were able to bring a lawsuit in the United States and won an injunction against the retransmissions.
- Napster.com. This site became a synonym for the Internet debate. At its peak, more than 40 million subscribers worldwide logged on to Napster and, utilizing the searching facilities of the website, identified computers around the globe that contained files of published songs and effected a file transfer. The file of music was copied and sent from one computer to others without clearance or compensation to the owners. The largest recording companies launched a coordinated legal attack against Napster and prevailed in a copyright infringement case that effectively shut down the site.
- Scour.com et al. Other websites, utilizing the principle that people should be allowed to share files of information, just as individuals trade books and magazines, made music and movies available. One at a time, the recording and motion picture industry has identified them in cyberspace and filed legal actions to shut them down as well.
- Reimerdes (CSS/DeCSS). Content scramble system (CSS) is a code phrase for a system that encrypts data on CDs and DVDs and prevents users from copying the content (e.g., music or movies) or playing them on nonauthorized DVD machines. An enterprising young Norwegian figured out how to crack the CSS code, so that DVDs could play on DVD machines run by an operating system popular with techies, which would otherwise not be useable for most DVDs. Dubbed DeCSS, his code-cracking program traded throughout the universe of computer hackers. The movie and recording industry launched challenges to the DeCSS program, successfully prevailing against defendants, including Reimerdes, to convince the courts that that the renegade program violated the new anticircumvention provisions of the DMCA.
- Professor Felton. Shortly before Princeton University professor Edward Felton planned to speak about the DeCSS program at a conference, he received a letter from a recording industry representative, threatening reprisals under the DMCA. It was posited that the speech explaining DeCSS could violate Section 1201(a)(2) by offering the public ‘a service primarily designed for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner.’ Foolish as it may sound, the notion was that merely talking about DeCSS was a threat equivalent to an access-cracking technology. Even though it was later clarified that such a result was not intended and the threat effectively retracted, Felton sought a declaratory court order that the DMCA was unconstitutional because the threat permitted improper interference with Felton's free speech. In light of the retraction, the court refused to consider the case a live dispute and simply dismissed his complaint.
Controlling Access to Content
The various disputes involve competing claims regarding access to and use of information and works in a digital world. Matters are made more crucial because the technology of the computer, the digital transformation of words and images to zeros and ones that can be read and understood by machines, enables copying with amazing success and clarity. Unlike the wizardry of video and audiocassette recordings or the trusty photocopy machine, digital copies perfectly reproduce the original. When CDs are replicated by computers, they sound as true as the ones you buy in the store. This means that copying becomes more reliable and precise. And it is also easy.
Pushing one letter on the keypad, a user can download and store all the data at one's command. In copyright parlance, we have
- A transmission from the host server or computer, via telephone lines or other transmission circuits, to the receiving unit.
- Copying when the work is stored on the receiving computer and printed out.
- A display when it is visually seen on the monitor.
- A performance if speakers translate the sounds.
The reality of these activities constitutes one of the greatest challenges to effective policing of copyrights (Figure 29-1). The content industry was very concerned that the attitude of users of the Internet, bolstered by an early image of ‘anything and everything goes’ and sharing information for free, renders their published works unmarketable. After all, if you can locate the text online for free, why buy it?
But buried in the technology itself are some solutions. Prime among them is encryption. The content owners are moving quickly to establish parameters by which content can be coded so that access to it is denied unless the user's activity has been approved. In other words, encryption makes pay per use possible. In addition to encryption, high-tech solutions are being developed, such as digital signature, a sign-in authentication process that would have to be displayed before one could access data, or anticopying codes, computer programs that would prohibit downloading before it starts.
The battle over cyberspace content is playing out in several venues, primarily in the courts, but also in Congress. A handful of lawsuits mark some of the important principles of ownership of works. In general, the courts have been willing to apply copyright law directly to the Internet. Therefore, a hacker who uploaded software so that thousands of his nearest and dearest could benefit from the works is held to be an infringer. Even more compelling, the online service that promoted the transactions as a way of popularizing its services also is held accountable. That
ruling sent shivers down many online service providers' spines, because the ability to permit access to the many and varied Internet sites was now in question. When a different court held that the service provider was not responsible for every text transmitted by it, a sigh of relief was heard throughout the industry.
The posting of copyrighted works of the Church of Scientology gave birth to a couple of lawsuits testing whether it was fair use for a disgruntled disciple to allow the public access to the closely guarded texts and for the Washington Posf to print portions of the texts from the website. In two equally defensible, but seemingly inconsistent, rulings, the same court held first that the disciple was liable for copyright infringement and second that the newspaper qualified as a fair user.
It is important to note that these seminal decisions in the law of cyberspace apply only in the jurisdictions where they operate. Unless Congress revises copyright law or the U.S. Supreme Court issues an opinion, many of these issues may not be definitively resolved. Especially in light of the international nature of the transmissions, no single lower court can be said to offer the authoritative order for the treatment of works in the new media.