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Eugene Weekly : 04.28.05

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Tools of Infringement

Evolving file-sharing technology raises hell with copyrights.

BY DANIEL EPPS

Walk around the UO campus and the iPod users are easy to spot. Look for white headphones and colorful carrying cases. But it's harder to tell how those students have stocked their portable Apple music players with songs. Have they paid for their music, or have they downloaded it off the Internet for free? That question is at the center of a nationwide controversy, which includes heated policy debates on university campuses.

Law student Alex Frix got in trouble for downloading.

Some schools, like Penn State, make all students pay for unlimited legal downloading licenses as part of their basic fees. Others are fairly hands-off when it comes to students' downloading activities. The UO is among the schools that have taken a more punitive approach. Students who use the UO network to download or share copyrighted files are subject to warnings, restrictions of their Internet access, and even prosecution.

In 1999, the UO alerted federal authorities to a student named Jeffrey Levy. He became the first person convicted under the "No Electronic Theft Act," a 1999 law written to crack down on the unauthorized online distribution of copyrighted material. Levy had run a website providing free access to music, software programs, and movie clips. He received only probation and restrictions on his computer use, but could have gotten three years in jail and a $250,000 fine.

A more typical case is that of Alex Frix, currently a second-year law student. His first term at the UO, he was using a version of the file sharing service Gnutella, and inadvertently downloaded commercial video editing software. He received a threatening letter from the Business Software Alliance, a software industry group, and had to meet with university officials. In the end, all the university did was send a four-page letter detailing UO sexual harassment and abuse policy to his parent's house. While comical, Frix's case shows how closely students' Internet activities are watched.

These students' stories are episodes in a much bigger dispute over copyright, freedom of information, and the ultimate ownership of culture. Last October, the Supreme Court heard arguments in MGM v. Grokster, a case that may be a bellwether for how the government will answer these questions in the next few decades. An issue that many think is only about teenagers and college kids "pirating" Metallica albums actually touches on much more fundamental issues of social values.

 

A short and eventful history

File-sharing is older than Napster, but most accounts start there, and it's as good a beginning as any. The brainchild of a 19-year-old college dropout, Napster was a service that let computer users easily download and share music files in MP3 format, a form of encoding that shrinks large CD audio files to manageable sizes. Napster grew immensely popular, but also drew the ire of record companies. Fearful that CD sales would plummet with freely available music, the Recording Industry Association of America (RIAA) filed a lawsuit claiming that that Napster was responsible for any copyright infringement by its users. The San Francisco-based U.S. Court of Appeals for the Ninth Circuit agreed and shut down Napster in July 2001.   

Since the end of Napster, several potential successors have emerged. Some, like Apple's iTunes Music Store, are RIAA approved and sell songs and albums for a little bit less than their CD equivalents. But a second-generation of peer-to-peer file-sharing programs is now available, such as KaZaA, Limewire, and Grokster. Unlike Napster, they are much more difficult to stop. Napster worked like a telephone operator — a central server compiled a searchable list of the users connected and what files they were sharing. If one user wanted to download a song from another, Napster simply connected them. All the file transfers went directly between users — that's what's meant by "peer-to-peer." Nonetheless, once the Napster server was shut down, the whole network collapsed. With no server, users had no way to connect to each other.

With Napster's downfall in mind, designers of second-generation file-sharing networks built them to require no central servers. When a program like Limewire opens, it starts looking for other users, and as soon as it finds one the first computer is then connected to all of the other users to which the second is connected. Searches are routed through "supernodes" — home users with fast connections whose computers take on the role formerly played by a central server. All of this fancy networking is done in the background, so the user experience is not that different from using Napster. And while Napster was limited to music, the new peer-to-peer programs can be used to download all sorts of files, including movies.

 

A war fought in the courts

The RIAA and, more recently, the movie industry, have taken a two-pronged legal approach to stopping users of these new programs from downloading copyrighted music and movies. They've brought suits against individual file-sharers, who have had to agree to expensive settlements or face even more expensive trials. Almost all choose to settle. At the same time, entertainment companies have sued the makers of peer-to-peer software. The lawsuits against individuals seem to have at least partially achieved the desired result: They've stopped some computer users from downloading files for fear of legal reprisal, although millions still use the programs — including plenty of UO students, although few are inclined to go on the record admitting to downloading.

The legal effort to stop peer-to-peer software designers has not fared as well thus far. The Ninth Circuit ruled in favor of Grokster last year. But the Supreme Court will get the last word.

The central question in Grokster is subtly different from the one in the Napster case. Napster was a service that actively helped users commit copyright infringement. Grokster is just a tool, with copyright infringement one possible use among many. The case turns on whether such programs should be legal, and whether those who make them can be allowed to profit.

 

Remember the Betamax

The Grokster case is strikingly similar to one of the most important intellectual property Supreme Court decisions in recent years, Sony v. Universal City Studios. Movie studios wanted to stop Sony from selling their Betamax tape recorders, because they feared that viewers would use the devices to make their own copies of movies broadcast on television, and thus be less likely to go to the cinema or rent tapes. The Ninth Circuit had found for the movie companies, citing the potential for abuse inherent to the device. In a surprising move, the Supreme Court reversed the decision, ruling that a device needs to be merely "capable of substantial noninfringing uses" in order for the inventors not to be subject to liability. The justices rightly observed that while some Betamax owners were using the recorders to build large collections of movies, most were simply using them to "time-shift" shows — that is, to record programs they wanted to watch later — a practice the Court said was not an infringement of copyright law.

Twenty-one years later, few think that Sony was decided incorrectly. The "time-shifting" abilities of VCRs made them incredibly popular; instead of hurting the movie studios' bottom line, this phenomenon just gave them a bigger market. With so many homes equipped with VCRs, video rental and sales become hugely lucrative. Now, videotapes and DVDs account for more of Hollywood's profits than big screen releases.

The lesson many draw from Sony is that entertainment companies don't always know what new technologies will do to their profits — to what extent file-sharing has actually hurt record sales is hotly disputed. In addition, giving copyright holders whatever they want might not be in the best interests of society in the long run. Some downloading activity that entertainment companies are trying to stop may be making them money. One UO student said that she started watching the new UPN drama Veronica Mars midway through the season after downloading the episodes that aired before she discovered the show. "Without downloading, I would never have been able to get caught up until the DVDs came out, so I probably just would never have started watching." Now she watches the show weekly when it airs, enlarging the market for UPN's advertisers. Are entertainment companies are now making the same mistake they made 21 years ago?

 

Legitimate uses evolving

If the Supreme Court decides to stick with the Sony standard in Grokster, the justices will have to decide whether file-sharing services have significant, legitimate uses. While Napster's lawyers failed to make the case in court that the service was being used by almost anyone for legal purposes, newer file-sharing technologies have started to find fully legal uses. One of the newest, and the perhaps the best developed to date, peer-to-peer program, BitTorrent, is used by many to download legal material. Etree runs a site (http://bt.etree.org) that offers BitTorrent downloads of concert recordings of "taper-friendly" bands who have explicitly given fans permission to record their performances and to freely distribute the tapes. With the BitTorrent software and a high-speed connection, you can go to Etree and download a super-high quality recording of a 1978 Grateful Dead concert at Mac Court in just an hour or two.

"Digital rights" activist groups such as the Electronic Frontier Foundation are strong advocates for the legality of file-sharing programs. Fred von Lohmann, an EFF attorney, fears that if Grokster is decided in favor of the movie studios, the result will be "the installation of Hollywood lawyers in every technology company's engineering meetings" and a serious harm to innovation. The justices might agree: At oral argument, several asked questions about how ruling for MGM might prevent companies from inventing products like the iPod.

 

Owning Congress

Professor Keith Aoki, the UO School of Law's intellectual property expert, thinks that the Supreme Court might actually vote to uphold the Ninth Circuit, allowing Grokster and others to keep distributing their software. He notes that even some of the most conservative justices have shown a preference for the free market over strong intellectual property rights.

However, he isn't optimistic about the current and future state of intellectual property. "Congress is in the pocket of the recording industry," he says. "In 1998, they passed

the Digital Millennium Copyright Act which was an incredibly far-reaching extension of copyright laws. And now, just a few years later, the recording and entertainment industries are demanding even stronger copyright protections, and they may get them." (Just days after Aoki's interview, Congress passed stiff criminal penalties for those who leak pre-release versions of records over the Internet.)

Aoki notes that recently a proposal to allow companies to send signals "frying" the hard drives of copyright infringers was given serious consideration in the U.S. House. He warns that even if the Supreme Court rules that the creators of non-centralized, peer-to-peer file sharing services are not liable under current laws, it's possible that Congress will simply create a new kind of liability. "Inducement liability," as it has been named by its proponents, would make inventors of programs like Grokster and KaZaA responsible for the acts of those who use their inventions, even if indirect and unintended.

Keith Aoki

Congress' willingness to create new kinds of liability at the request of the entertainment industry is troubling . Through numerous incremental changes, American copyright law has quietly and quickly undergone radical extension over the last few decades. Copyrights, which at one point in American history lasted only 28 years, have been repeatedly increased by Congress; as of 1998, they can last as much as the life of the author plus 95 years.

Critics point out that for the most part the beneficiaries of such long copyright extensions are almost all corporations who own wildly successful franchises. They are quick to point out that Disney was about to face the copyright expiration of some of the earliest Mickey Mouse cartoons before the passage of the most recent extension, for which the company lobbied aggressively. Many think Congress' concern over downloading has more to do with corporate welfare than a sense of justice. "If we're going to punish companies who make products with illegal or dangerous uses, why isn't Congress going after the gun industry, the alcohol industry or the car industry as well?" Aoki asks.

 

A new kind of property

While the RIAA and MPAA have done their best to convince the public that downloading is equivalent to theft, it's not a given that the old-fashioned concept of stealing directly applies to electronic media. Anti-establishment programmers who live by the motto "Information wants to be free" are quick to point out the fundamental difference between shoplifting a record and downloading a song: Only in the first case does your action deprive someone of something. An MP3 is a piece of information and not a physical object; one copy can be turned into a million. The rules that govern physical property may not make sense for digital, intellectual property.

Even though the RIAA claims that the MP3 controversy is about basic rights, and not record companies fighting to preserve an outdated business model, some recording artists encourage free distribution of music. Jeff Tweedy, the singer for the popular indie rock band Wilco, recently said those making an issue out of MP3 downloading "are people who are so rich they never deserve to be paid again." Wilco posted their album Yankee Hotel Foxtrot online before any record company would release it, and the band's popularity soared. Many up-and-coming musicians are using the Internet to build their fan base. A quick search on Myspace.com revealed several hundred bands or musicians in the Eugene area alone — many just high school students playing in their garages — that use the site to offer MP3s of their music.

 

Visions of the future

Wal-Mart refuses to sell CDs that aren't edited to remove "objectionable" material. Blockbuster won't stock movies that don't get "R" ratings or lower. ClearChannel dominates the airwaves. Because of the consolidation of media producers and distributors into a few huge conglomerates, some downloaders say that peer-to-peer sharing is the only hope for those with tastes outside the mainstream. As one university employee who asked to remain anonymous said, "Downloading music hasn't decreased the number of albums I buy. Just the number of crappy albums."

Digital rights advocates fear we are heading towards an era of perpetual copyrights, in which authors and artists will never be able to make creations derivative of other works. They contend that if human society had maintained continuous copyrights since the dawn of history, a novel like James Joyce's Ulysses, an epic poem like Derek Walcott's Omeros, or a movie like O Brother, Where Art Thou — all of which are retellings of Homer — could never have been created. In our world, DJ Danger Mouse's lauded Grey Album, which mixed together the Beatles' White Album and Jay-Z's Black Album, cannot be released because the owners of the source material won't allow it. Several volumes of the new translations of In Search of Lost Time by Marcel Proust — who died in 1922 — won't be available in the U.S. until 2018 because of the recent copyright extension.

The fear of eternal copyrights is no paranoid fantasy. Jack Valenti, the head of the Motion Picture Association of America, famously declared that copyrights should be extended to last "forever minus one day." The Constitution specifies that copyrights should last "a limited time," but those on Valenti's side point out that even a term of one million years is limited.

Richard Stallman, one of the founders of the Free Software Project, a group that encourages "open-source" coding — freely distributed and easily modifiable software — is a vocal critic of copyright. He fears our world may soon lack an inherent "right to read," because all written material will be controlled by powerful corporations. Stallman encourages everyone to challenge the assertion that when it comes to copyright, "today's law reflects an unquestionable view of morality."

Creative Commons is a nonprofit started by intellectual property scholars and computer scientists trying to forge a middle path between the RIAA and MPAA's view that copyright should be absolute, and Stallman's proposal that we do away with it altogether. The principle behind Creative Commons is that while copyrights are currently too strong, creators should have an alternative beyond casting their works into the public domain. The group has developed a new kind of copyright contract; authors who adhere to the standard assert that only some rights are reserved, and agree to all non-commercial sharing and derivative use of their works. Stanford law professor Larry Lessig champions Creative Commons as the best compromise between respecting authors' rights and allowing enough freedom for the creation of new works. However, since it is a voluntary standard that corporations are unlikely to adopt, the Commons is at best only a partial solution to perceived problems with current trends in copyright law.

 

An unclear future

The Supreme Court's 1984 Sony decision created a doctrine that much of the rest of the world has followed. It's likely that how America chooses to walk the balance between digital innovation and intellectual property protections will again set a global standard. The future of copyright is uncertain — will the model be the maximalist approach favored by the entertainment industry, the total freedom of information Stallman and others prefer, or something in between like Creative Commons? While many worry about the increasing influence of corporations on law and other areas of human life, optimists point to how technological innovation has historically triumphed over restrictive legislation and entrenched economic power. No matter what happens, it's quite possible that the evolution of cultural and artistic expression in the U.S. might be at a turning point.

 

Daniel Epps of Eugene is a recent graduate of Duke University and will be attending Harvard Law School in the fall.