A Public Policy Report

Second edition, revised and updated, © 2003. With additional updates in 2004 (html version only).  

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IV. FILE SHARING, FREE EXCHANGE, AND THE ONLINE COMMONS

Napster and Its Successors
Universities, New Lawsuits, and Corporate Sabotage
Solutions: Restoring the Copyright-Free Expression Balance

Napster and Its Successors

Since the late 1990s, "peer-to-peer" sharing of popular music has been the copyright industry's most visible concern, and the Napster case was its first big attempt to stop it. As with DeCSS, the industry decided, at least initially, to go after the technology that enables file-sharing rather than users of the technology who actually engage in copyright infringement.

Napster was the brainchild of 19 year-old Shawn Fanning who, by 2000, had attracted $15 million in venture capital to support his "MusicShare" software and a Web site that offered indexing and technical help to music lovers wanting to share their digital "MP3" music files. The files themselves remained on their owners' computers, but Napster's site and software allowed searches through those computers, and enabled free transfers. Fanning said he was merely a matchmaker, helping fans engage in the kind of sharing and copying that had always transpired offline. But there was no question, as one columnist put it, that Napster was also "part of a movement challenging copyright."136

In 2000, the rock band Metallica fired the first volley in the peer-to-peer wars by suing Yale, Indiana University, and the University of Southern California for allowing students to use Napster to copy songs. Yale promptly blocked access to Napster but the others, in the words of one advocate, rejected the demand and stood up "for principles of academic freedom [and] free exchange of information."137

Shortly afterwards, A&M Records, Geffen, Sony, and other music producers sued Napster itself, claiming it was a "contributory and vicarious copyright infringer." With about 60 million users sharing nearly 40 million songs, they said, Napster was a major threat to the integrity of copyright. The judge agreed, and issued a preliminary injunction barring Napster, Inc. from "engaging in, or faciliating others in copying, downloading, uploading, transmitting, or distributing" copyrighted music.138

Napster had two main defenses. First, it argued that file-sharing was fair use, not copyright infringement. After all, in the Sony case involving VCRs, the Supreme Court had said that copying an entire work can sometimes be fair use. Moreover, many fans used Napster to sample music in order to decide whether to buy it, much as shoppers do with earphones and sample disks in music stores.

But even assuming that many users were making unlawful copies, Napster said, it wasn't guilty of "contributory" or "vicarious" infringement simply because its software was being used for illegal purposes. Burglars use tools, but the manufacturers of screwdrivers are not liable for their illegal acts. Hence, Napster's software was no more unlawful than tape recorders and other tools for copying music. A 1992 federal law, the Audio Home Recording Act, protects such tape recording against claims of copyright infringement.139

The courts were not impressed. They found Napster guilty as charged because it had "sufficient knowledge" that infringement was going on, its software contributed to the illegal activity, and it had the ability "to police its system" but failed to do so. Importantly, though, the court of appeals did modify the preliminary injunction against Napster, which it found to be too broad. It was Napster's conduct, not simply its technology, that contributed to copyright infringement, said the appeals court. To find Napster guilty of copyright violations simply because it "allows for infringing uses would violate Sony and potentially restrict activity unrelated to infringing use."140

The appeals court thus ordered that the injunction be narrowed because it was unfair to put "the entire burden" on Napster of ensuring that no copyright infringement was going on through the use of its system. Instead, the music companies had to tell Napster which of their copyrighted works were available on its system before Napster had the duty to delete them.

But even after the trial judge issued this modified injunction, Napster was doomed. Within a few months, the judge ordered a shutdown of the site until Napster removed all files from its index which it had "reasonable knowledge" contained copyrighted works. Even with a new filtering system in place, Napster wasn't able to satisfy the court, and it eventually agreed to a $26 million settlement of the case. Soon after, it went out of business.141

Senator Orrin Hatch commented with dismay on the process by which a preliminary injunction – "before a trial on the merits, mind you" – destroyed an enterprise "that had developed a community of over 50 million music fans."142

But the demise of Napster hardly ended online file-sharing. New peer-to-peer systems like Grokster, Morpheus, and KaZaA soon replaced Napster. These programs enable users to connect with each other and share materials of all kinds, including music, without a central Web site, index, or overt conduct of the kind that incriminated Napster. By 2002, more than 14 million fans were using Grokster and similar programs to download music, movies, TV shows, photos, and text for personal use.143

Another lawsuit was inevitable, and in late 2001, 28 media companies sued the distributors of Grokster, Morpheus, and KaZaA for contributory copyright infringement. MusicCity, the developer of Morpheus, moved to dismiss the case, arguing that under the Sony decision, courts cannot ban technology that is capable of lawful uses simply because it can also be used for infringement. MusicCity pointed out, for example, that Morpheus file-sharing technology is used by Project Gutenberg, a respected online archive, to convert many non-copyrighted works, "from the King James Bible to Shakespeare to the CIA World Fact Book," to digital form.144

In April 2003, the federal court agreed. It ruled that Morpheus and Grokster are closer to VCRs and photocopy machines than to a centralized file-sharing service like Napster. Although the distributors of the programs undoubtedly know that many users are infringing copyrights, the judge found no evidence that they assisted with specific acts of infringement. And there are "substantial noninfringing uses" for the file-sharing software, he found - from distributing free songs to "sharing the works of Shakespeare."145

As of late 2003, the industry's appeal of this decision was pending. But however the Grokster case is ultimately decided, it is difficult to imagine that file-sharing technology will ever be completely suppressed. For one thing, online sharing and copying goes well beyond the borders of the United States. Although StreamCast, the successor to MusicCity, is based in Tennessee and Grokster is owned by a California family, KaZaA, as of late 2002, was managed in Australia and distributed by a company incorporated on the South Pacific island of Vanuatu. Its computer servers were in Denmark and as The New York Times reported, "its software was last seen in Estonia."146

Update: In August 2004, the U.S. Court of Appeals for the Ninth Circuit affirmed the federal district court ruling in the Grokster case. The court agreed that file-sharing software is capable of many legitimate and important non-infringing uses; indeed, it said, "even at a 10% level of legitimate use, as contended by the Copyright Owners, the volume of use would indicate a minimum of hundreds of thousands of legitimate file exchanges." In June 2005, however, the Supreme Court reversed, ruling that Grokster and Morpheus could be liable for actively inducing copyright infringement even if the software had legitimate uses.146a

This global aspect means that courts in different nations will take different approaches to file-sharing. Early in 2002, for example, the Amsterdam Court of Justice in the Netherlands ruled that KaZaA is not liable for the way individuals use its software, and that those concerned with copyright violations should go after the infringers, not the makers of tools.147 Even if a U.S. appeals court – or, eventually, the Supreme Court – comes out the other way, its ruling will have limited effect in the face of the Dutch decision.

Journalist John Alderman notes the irony that by killing Napster, the music industry pushed fans toward more sophisticated programs which replaced the central online meeting place with software that directly connects users to each other. He berates the industry for failing to embrace the new technology and find attractive ways to distribute music, movies, and other arts online. Instead, he says, the industry, dinosaur-like, tried to stop history.148

Eventually, music companies did set up Web sites where songs can be obtained online for modest fees. But intra-industry disagreements have hobbled these ventures; some performers have been incensed at their minuscule share of the royalties; and consumers have generally not been thrilled to find that they are only allowed to "rent" songs, which disappear after a set period of time and cannot be moved to portable MP3 players. In addition, popular new recordings have been kept out of the archives in an attempt to protect CD sales.149

Although efforts to package and sell music online continue – including a promising venture by Apple in 2003 that is less restrictive than the earlier services – it is also true, as the industry says, that it is difficult for sites charging even small fees to compete with free music. By the middle of 2003, KaZaA had reportedly been downloaded more than 270 million times - more than any other free program on Download.com.150

Even before the music industry lost the Grokster case, it was exploring other ways to defeat file-sharing. In mid-2003, it sued four college students who, it claimed, were operating "little Napsters" at their universities. The students were using software like "Flatlan," "Phynd," and "Direct Connect" to index files and handle search requests.

The lawsuits, which demanded damages of $150,000 for every work that was unlawfully copied – for a potential total of billions of dollars – were intended to send a clear message of intimidation, and they had the desired effect. In little more than a week, the students and their families settled the suits, agreeing to pay the RIAA $12,000-$15,000 each and to shut down the software programs.151

But these suits would not necessarily have been winners for the industry. The technologies involved, as one expert said, look "very different than the old Napster model." Phynd, for example, "is a generic search engine technology that lets users configure it to search whatever they want." Flatlan "lets a student set up a search engine – often on an ordinary dorm room PC – that scours all computers connected to a campus network that have Windows file-sharing turned on." Unlike Napster or even KaZaA, "Flatlan searches a network that already exists."152

One commentator noted that substituting "www.google.com" for "wake.princeton.edu" in one of the industry's lawsuits would describe the operation of the popular search engine very well. "Can you use Google to find and download copyrighted materials? You betcha. ... But of course, Google's a fairly good-size company with a legal staff and would probably fight the RIAA."153

The suits against college students represented a major escalation in the file-sharing wars. The industry had been trying for years to persuade universities to monitor students' and professors' computer use and crack down on copying. On the one hand, the trade associations said that "copyright infringement is theft, ... pure and simple." On the other hand, there are legitimate uses of peer-to-peer networks, particularly in academia. These include the sharing of scientific research and other collaborative projects. The Chronicle of Higher Education suggested that without a wholesale crackdown, universities could still stop piracy by observing "unusual spikes that might indicate that someone was illegally sharing the latest Ben Affleck movie or Britney Spears video."154

And, as the Electronic Privacy Information Center (EPIC) argued, the collegiate surveillance desired by the industry would require universities to "delve into the content and intended uses of almost every communication. Such a level of monitoring is not only impracticable; it is incompatible with intellectual freedom. ... Network monitoring for bandwidth management is appropriate, but monitoring of individuals' activities does not comport with higher education values." 155

In addition to pressuring universities, the industry fights file-sharing by sending "take-down" letters to both academic and non-academic Internet service providers (ISPs). The letters demand that the ISPs remove Web sites, search engines, or other online material that they say contains copyright-protected work. Under a section of the DMCA, ISPs can be liable for copyright infringement by their users unless they comply "expeditiously" with such industry notices.156

Of course, the industry's claims are not always correct. Indeed, without a legal proceeding to test their accuracy, it is unlikely that they would be.

For example, in May 2003, the RIAA publicly apologized to an academic ISP, Penn State University, for sending a "stiff copyright warning" that turned out to be mistaken. The letter alleged that the university's astronomy department was unlawfully distributing songs by the musician Usher. The department's system manager searched in vain for such a file, and finally solved the mystery when he discovered that a professor named Usher was mentioned on the site, along with a song "performed by astronomers about the Swift gamma ray satellite, which Penn State helped to design." The combination of "Usher" and the ".mp3" suffix had, according to one news report, "triggered the RIAA's automatic copyright crawlers."157

In another dubious application of the DMCA's take-down provisions, the Internet company Verio, under pressure from Dow Chemical Company, removed the activist service provider Thing.net from the Web because of a parody press release posted on the 18th anniversary of the Bhopal disaster in India – "a deadpan statement, which many people took to be real," explaining that Dow "could not accept responsibility for the disaster due to its primary allegiance to its shareholders and to the bottom line." Dow had sent a stern notice to Verio under the DMCA. The political commentary was silenced thanks to the DMCA's automatic take-down provisions, overreaching by Dow, and Verio's failure to challenge Dow's claim that the parody constituted copyright and trademark infringement. According to Thing.net, organizations affected by the take-down included the art space P.S.1, Artforum magazine, Tenant.net, which aids renters facing eviction, and hundreds more.158

Update: In September 2004, a federal court in California ruled that Diebold, Inc., a maker of voting machines, had violated the DMCA by making knowing misrepresentations of copyright infringement in take-down letters to many ISPs, including Swarthmore College, where students had posted e-mails among Diebold employees acknowledging serious problems with the Diebold machines.158a

The DMCA does require ISPs to "notify the subscriber" whose material has been removed as a result of the notice-and-take-down rules. If the subscriber submits a "counter-notification" in the form prescribed by the law, the ISP must then undo the removal, unless the company that originally complained goes to court.159 But there is no time specified for notifying the subscriber ("promptly" is all the DMCA says), and many individuals do not have the legal knowledge or wherewithal to follow the procedure laid out by the law. Meanwhile, the mandatory take-down may last indefinitely. It allows the industry to short-circuit lengthy and burdensome lawsuits, but risks suppressing a great deal of legitimate expression in the process.

Most ISPs do not welcome take-down letters. They find the prospect of policing possible unlawful activity among their billions of users to be distinctly unappealing – somewhat like forcing the telephone company to listen in on users' conversations for evidence of crime. But under the DMCA, they do not have much choice.

In 2002, one ISP challenged a part of the DMCA's notice-and-take-down scheme. This provision allows copyright owners to obtain subpoenas from a federal court requiring ISPs to identify users who, the copyright owners claim, are engaged in infringement. There does not need to be any pending lawsuit for the subpoenas to be issued. Verizon went to court to contest an RIAA subpoena.

Verizon challenged both the constitutionality of the DMCA's subpoena provision, and the broad way that the RIAA was interpreting it – to apply not just to Web sites, but to any online communication, even if the ISP is not hosting it, but simply transmitting it. Verizon argued that the law contains no "built-in protection for expression" of the type that the Supreme Court specifically noted in the Eldred case was an essential element of the copyright system. But a federal judge rejected Verizon's arguments, and ordered it to comply with the subpoena.160 As of late 2003, the case was on appeal.

Update: On December 19, 2003, the court of appeals reversed, and ruled that the DMCA's subpoena provision does not apply where the ISP is not hosting, but simply transmitting e-mails or providing an Internet connection. It suggested Congress amend the DMCA to solve the industry's problem. See News: Appeals Court Stops File-Sharing Subpoenas.

In March 2004, a Canadian judge denied industry requests for the identities of alleged file-sharers on the ground that "the mere fact of placing a copy [of a music file] on a shared directory in a computer where that copy can be accessed via a P2P service does not amount to distribution" in violation of Canadian copyright law. It was a major setback to the RIAA, which promptly appealed the decision.160a

Meanwhile, relying on the Verizon decision, the RIAA now sent nearly 1,000 subpoenas to ISPs, including universities, demanding the names of users who it claimed were sharing copyrighted music.

In response, Senator Norm Coleman opened a legislative inquiry into whether the RIAA's tactics "are violating the privacy rights of innocent people." He criticized the RIAA for issuing subpoenas for "‘unsuspecting grandparents whose grandchildren have used their personal computers.'" The New York Times quoted one parent who used KaZaA "to find songs that included ‘Happy Birthday' to play for his young daughter when she woke up on her birthday, among other times. ‘It's cute, but look what happened,' he said. ‘It's an expensive birthday.'"161

Although a few colleges and one ISP went to court to fight the subpoenas,162 most complied, supplying the industry with the identifying information it needed to sue individual file-sharers. In early September, the RIAA filed 261 such suits - one of them against a 12 year-old girl - while simultaneously offering an "amnesty" to anyone who would delete all shared files and submit a statement swearing to resist all future file-sharing temptations.

Some observers questioned the wisdom of the industry's hard-nosed strategy. As Professor Jane Ginsburg said:

It could backfire. If you have really widespread copyright infringement, there is a great temptation to say if it's that widespread it can't be infringing any more. The risk of suing individuals is that there will be more pressure in that direction.163

Mass lawsuits against music fans are the most visible and controversial of music companies' strategies, but quieter initiatives are also underway. The industry continues to develop new DRM techniques – for example, Epic Records' attempt in 2002 to lock up advance copies of Tori Amos and Pearl Jam CDs by gluing them inside Sony Walkman players that are then sent to reviewers. One observer commented on this tactic: "even a 'glueman' player is unlikely to deter a diehard critic" who wants to copy or resell the disk. A reviewer said he was able to pop the player open, in order to "listen to it how I want to listen to it – and in my stereo is where it sounds best."164 For the music industry to force reviewers less resourceful than this one to evaluate new music by listening to it on a Walkman instead of a home stereo does seem self-defeating.

Another plan, contemplated by the Walt Disney Company in July 2003, involves manufacturing DVDs that automatically stop working after a certain time. The idea, ostensibly, is to save consumers the trouble of returning DVD rentals to their local video store. One environmentalist noted that the impact of disposable movies could be horrendous, "as millions of now useless discs clog the landfills with nonbiodegradable polymers." Still other schemes floated in 2003 include lowering the retail prices of CDs, and urging legislation to outlaw file-sharing on the theory that it enables minors to access pornography.165

Finally, the industry has embarked on "direct action." In 2002, journalists reported on a "cottage industry" of saboteurs, supported by media companies, who "saturate file-swapping networks with false or corrupted versions of songs and videos, hoping to frustrate would-be downloaders."166 The next year, the industry took its campaign one step further, by "quietly financing the development and testing of software programs that would sabotage the computers and Internet connections of people who download pirated music." The proposed sabotage could take three forms: redirecting users to Web sites where they can buy songs; scanning personal computers for music files that might be illegally copied and then deleting them; or freezing a person's computer system entirely. The second option, one executive admitted, was problematic because "it was deleting legitimate music files, too."167

Solutions: Restoring the Copyright/Free Expression Balance

Many critics argue that online file-sharing, whether or not every instance of it violates copyright law, actually helps rather than harms the music industry. Negativland, a group of activist musicians, says that "the literally unconsumable plethora" of free music online "does create sales." Free music is "excellent advertising," which produces enough new sales to balance out losses caused by file-sharing. "The amount of free music downloading going on (perhaps now in the billions) really scares the recording industry, but they seem to forget the scales of practicality involved. They only need to sell a fraction of that amount to become sinfully rich anyway."168

Similarly, John Alderman points out that through file-sharing, "songs and artists were rediscovered by listeners whose fond memories wouldn't support a $16 CD but who were happy to download a song for a nostalgic listen."169 In this scenario, no sale is lost because none was likely in the first place. To the
contrary, the triggering of fond memories might lead to a purchase that would not otherwise happen.

Surveys late in 2002 indicated that although music sales were down about 10% for the year, it was not clear that file-sharing – rather than a slow economy or other factors – was responsible. According to one report, 32% of Internet downloaders said they bought less music since they began file-sharing online, but 25% said they bought more. Another survey found that people who use file-sharing have increased their overall spending on tapes and CDs: "47% of experienced file sharers with broadband Internet access and CD burners increased their spending, while 36% decreased their spending." A report late in 2002 suggested that old-fashioned bootlegging, rather than online file-sharing, was a more likely factor in the decline of music sales.170

Update: A survey by professors at Harvard Business School and the University of North Carolina, released in March 2004, concluded that downloads from file-sharing "have an effect on sales which is statistically indistinguisable from zero."170a

As for the potential loss to musicians from file-sharing, some commentators suggest exploring alternative payment options. Back in the 1960s, the Grateful Dead promoted free circulation of bootleg tapes, believing that more sales of concert tickets would result.171 More recently, Pearl Jam left Sony's Epic label and "is now a prominent member of the independent music scene, with no other means of distribution" than the Internet. And Metallica, once a vocal opponent of online file-sharing, by 2003 had released some songs for free online.172

But the industry has continued to push Congress for stronger copyright protection and stricter enforcement. In late 2001, Senator Fritz Hollings introduced a bill that would have required "security technologies" in all new digital products – including CDs, videos, e-books, printers, hard drives, CD and DVD players, video game consoles, set-top cable boxes, and satellite TV. Anyone removing or altering the locks, or distributing copyrighted material with the locks disabled, would face the usual copyright penalties of five years in prison and fines up to $500,000 for a first offense; double that for subsequent offenses.173

Even more than the DMCA, Hollings's bill would have eliminated the balancing role traditionally performed by courts in copyright cases, by giving the force of law to private security systems and punishing those who evade or disable them, regardless of the impact on fair use or intellectual freedom. The basic problem with this approach is that DRM technologies cannot possibly take account of the variations and subtleties of copyright law, and particularly fair use.

As copyright expert Deirdre Mulligan explains, "only those policies that can be reliably reduced to yes/no decisions can be automated successfully. ... Policies that are subject to many exemptions or based on conditions that may be indeterminate or external are difficult or impossible to automate with DRM."174

Hollings's proposal was not greeted happily by cyber-activists or, more significant politically, by manufacturers. While groups such as StopPoliceware.org and Boycott-riaa.com argued that Hollings's mandatory "policeware" would hopelessly atrophy fair use and first-sale rights already compromised by the DMCA,175 software manufacturers struck a deal with the music industry. The manufacturers agreed not to support legislation such as that championed by Representative Rick Boucher (see below), that would "clarify and bolster the right of people to use copyrighted material in the digital age," while in return the recording companies backed off from Hollings's proposal.176

But legislative support for the industry continues. By mid-2003 seven states had passed "super DMCAs" that are even broader than the original, federal version. The year before, Representative Howard Berman proposed a "Peer to Peer Piracy Prevention Act" to create "a safe harbor from liability" for media companies engaging in "reasonable, limited self-help measures to thwart P2P piracy" – that is, sabotaging personal computers and software if they believe their owners are violating copyright law.177

Whatever the outcome of all the lawsuits, lobbying, and proposed new laws, it is clear that, thanks to the Internet, our culture has fundamentally changed. As hard as the industry pushes to control how its products are used, new ways of copying and sharing emerge. "In the long run," as one scholar says, "the media industry may well exhaust itself in a Quixotic quest to keep the ever growing and ever more sophisticated digital genie bottled up."178

Especially in the age of the Internet, with its potential for massive sharing and copying, more balanced approaches are possible. The lawyers representing Eric Corley gave some examples. (See The Circumvention Dilemma, in chapter III.) Attorney David Nimmer suggests others: Congress could require companies that encrypt copyrighted works to provide a means of unlocking them for legitimate first-sale or fair-use purposes. It could also protect consumers from legal liability if they find themselves "stymied by overreaching on the part of content owners," and resort to "self-help."179

Some of Nimmer's ideas have been adopted by Representatives Rick Boucher and Zoe Lofgren, two of a growing contingent in Congress who recognize that the imbalance in current copyright law is unhealthy and are working to change it. In 2002, Boucher and two colleagues filed legislation that would have ameliorated some of the more drastic terms of the DMCA. Their bill would have exempted from the law anyone who "is acting solely in furtherance of scientific research into technological protection measures," as well as any circumvention for purposes of fair use. Following the Sony case, it would also have legalized the manufacture or distribution of "a hardware or software product capable of enabling significant non-infringing use of the copyrighted work."180

Another bill, filed by Representative Lofgren, stated that it would "restore the traditional balance between copyright holders and society" by allowing circumvention for fair use purposes – unless the copyright owner makes tools available to do this without additional cost. Lofgren's bill would also have allowed the manufacture and distribution of circumvention tools that are "necessary to enable a non-infringing use."181

Although neither bill passed in 2002, legislative efforts are continuing. Boucher reintroduced his "Digital Media Consumers' Rights Act" in 2003, with support from Intel, Verizon, Sun Microsystems, the American Library Association, the American Association of Universities, the National Humanities Alliance, and several other corporations and public interest groups.182

As Boucher has written, clickwrap licenses and other forms of digital rights management, backed up with enforcement tools like the DMCA, are endangering free expression. From "the college student who photocopies a page from a library book or prints an article from a newspaper's Web site for use in writing a report, to the newspaper reporter excerpting materials from a document for a story," Boucher said, "the very vibrancy of our democracy is dependent upon the information availability and use facilitated by the fair-use doctrine." And if the direction of U.S. copyright policy doesn't change, he warned, "a time may soon come when what is available for free on library shelves will only be available on a 'pay per use' basis."183

Lawrence Lessig adds that mandatory licensing of music online – that is, requiring copyright owners to allow the replay or copying of their products in exchange for a reasonable fee – would provide the industry with compensation while stopping its attempts to shut down the Groksters of the world.184 Mandatory licensing is a standard feature of music on radio.

Legislation was also filed in 2003 to address the wreckage left by the Supreme Court's Eldred v. Ashcroft decision. Adopting Lessig's proposal that copyright owners be required to renew after a certain time, so that works without commercial value can enter the public domain sooner, Representative Lofgren introduced the "Public Domain Enhancement Act" of 2003. It would require copyright holders to pay a $1 renewal fee after 50 years, and again every ten years, until the end of the copyright term.185

Non-legislative efforts to relax some of the more oppressive features of the current system are also gaining momentum. The open source movement, for example, works to make source code (the human-readable building blocks of software) available to all who use computer programs. The open source Linux operating system has become an increasingly popular alternative to Microsoft.

Microsoft and other manufacturers are aware of the challenge posed by Linux. In May 2002, they formed the "Initiative for Software Choice" to combat the increasing number of legislative proposals and statements from foreign governments promoting open source software. The industry group said it simply wanted "even-handed competition," but Bruce Perens, a strategist who was fired by Hewlett-Packard because of his open source advocacy, said the group's real purpose was to quash competition from Linux. Perens formed his own organization, "Sincere Choice," to advocate for governments to buy software "that operates well with other programs." The issue is crucial, he says, because software giants like Microsoft "have huge toll booths on the Internet that can limit the spread of open source software."186

Promoters of open source software have also questioned the generosity of Microsoft's gifts to nonprofits, which may amount to $1 billion annually. Making schools and other potentially big buyers of computer technology dependent on Microsoft through gifts obviously inhibits their ability to choose open source alternatives down the road.187

In October 2002, Mitch Kapor, a longtime open source supporter who made his fortune with the Lotus spreadsheet, formed the "Open Source Applications Foundation" to create and distribute free software for e-mail programs, file-sharing, and other collaborations. The foundation offers its software for free to individuals or organizations, provided they reciprocate by making programs they produce with the foundation's software freely available as well.188

Earlier in 2002, Lessig and his colleagues began another organization, Creative Commons, with the goal of enlarging the public domain. Their first project was to design licensing agreements that would allow works to be copied and used well before their copyright term expires. Musicians interested in building an audience and visual artists wanting to disseminate their work can license it for noncommercial copying. "Inspired in part by the free-software movement," they explained, "which has attracted thousands of computer programmers to contribute their work to the public domain, Creative Commons plans to create a 'conservancy' for donations of valuable intellectual property whose owners might opt for a tax break rather than selling it into private hands."189

A similar project, developed by the Soros Foundation, aims to counter the increasing commercialization of academic publishing, with its often prohibitive subscription fees, by encouraging scholars and universities to create open-access journals and "self-archiving" programs. The goal is to make research and education more accessible, "share the learning of the rich with the poor and the poor with the rich," and "lay the foundation for uniting humanity in a common intellectual conversation and quest for knowledge."190

Yet another recently formed organization, Public Knowledge, states as its purpose to make intellectual property law "serve democracy, science, and culture." It combines research with activism, working with librarians, computer scientists, and others to challenge parts of the DMCA. It also advocates with the U.S. Patent Office for policies that will advance scientific research and public health.191

The Electronic Frontier Foundation has also been a leader in promoting alternatives to a heavily controlled copyright system. In addition to providing exhaustive information on copyright battles, EFF's Web site gives advice on the uses and limits of file-sharing and circumvention technology.192

EFF also collaborates with Harvard's Berkman Center and law clinics at other universities on the Chilling Effects Clearinghouse. The brainchild of Berkman Center fellow Wendy Seltzer, the Clearinghouse offers information on fair use for Internet sites catering to music or movie fans or otherwise containing copyrighted or trademark-protected images. Many of the sites criticize, parody, or protest the conduct of corporate trademark owners. The database maintains an archive of "cease-and-desist" letters that corporate copyright owners frequently use in efforts to shut down offending Web sites - for example, a letter accusing the anti-corporate sites "EnronownstheGOP.org" and "Radioslack.com" of intellectual property infringement.193

Seltzer says the Clearinghouse aims to "protect free expression against unwarranted legal threats by collecting and analyzing cease-and-desist notices sent to Internet users," and helping them understand their rights in response.194

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NEXT: CONCLUSION AND RECOMMENDATIONS

ENDNOTES

136. Edward Rothstein, "Swashbuckling Anarchists Try to Eliminate Copyrights From Cyberspace," New York Times, June 10, 2000, p. B4.

137. Professor Michael Madison, in Symposium Beyond Napster: Debating the Future of Copyright on the Internet: Panel One: The Road to Napster: Internet Technology and Digital Content, Nov. 16, 2000, published in 50 American U. Law Review 363 (2000); see also John Borland, "Hollywood Chases Down Campus Sites," CNET News.com, Oct. 10, 2002, www.news.com.com/2100-1023-961637. html (accessed 7/29/03) (reporting that the rapper Dr. Dre sued several universities as well).

138. A&M Records v. Napster, 239 F.3d 1004 (9th Cir. 2001). On the popularity of Napster at its peak, see Neil Strauss, "Record Labels' Answer to Napster Still Has Artists Feeling Bypassed," New York Times, Feb. 18, 2002, p. A1.

139. 17 U.S. Code §1008 exempts audio recording devices and their noncommercial use from suits for copyright infringement.

140. A&M Records v. Napster, 239 F.3d at 1021-23.

142. Quoted in Brad King, "Copyright or Copy Wrong?," Wired News, Feb. 16, 2001, www.wired.com/news/print/0,1294,41845,00.html (accessed 7/29/03). In another case shortly after Napster, a judge granted a preliminary injunction that put the file-sharing service Aimster out of business; in June 2003, a federal court of appeals affirmed the injunction. In Re: Aimster Copyright Litigation, 252 F. Supp.2d 634 (N.D.Ill. 2002), affirmed, 334 F.3d 643 (7th Cir. 2003).

143. "Fighting Back," Economist.com, Nov. 14, 2002, www.economist.com/
agenda/PrinterFriendly.cfm?Story_ID=1446431 (accessed 9/9/03).

144. Memorandum of Defendants Streamcast Networks, Inc. (Formerly Known as MusicCity.Com) ... in Support of Motion for Partial Summary Judgment, in Metro-Goldwyn Mayer-Studios v. Grokster, No. 01-08541 SVW (PJWx) (C.D. Cal.), Jan. 22, 2002, p. 11. MusicCity also argued that noncommercial uses of Morpheus by individual consumers to burn CDs are lawful under the Audio Home Recording Act of 1992 (see n. 139), which creates a mechanism for musicians "and other stakeholders" to receive royalties for home copying. Id., p. 13 n. 6. The Court of Appeals in Napster rejected a similar argument.

145. Order Granting Defendants' Motions for Summary Judgment, Metro-Goldwyn-Mayer Studios v. Grokster, 259 F. Supp.2d 1029, 1035 (C.D. Cal. 2003), appeal pending. Technically, the decision did not apply to KaZaA, which did not join in Morpheus and Grokster's motion for summary judgment.

146. Amy Harmon, "Music Industry in Global Fight on Web Copies," New York Times, Oct. 7, 2002, p. A1.

146a. Metro-Goldwyn-Mayer Studios, Inc. v. Grokster Ltd., 380 F.3d 1154, 1162 n. 10 (9th Cir. 2004), reversed, 125 S.Ct. 2764 (2005); see Two Defeats and a Silver Lining.

147. "Dutch Court Clears Web Music Swapping," CNN.com, Mar. 28, 2002,
msn.com.com/2100-1105-870551.html (accessed 7/29/03); Matt Richtel, "Music Services Aren't Napster, But the Industry Still Cries Foul," New York Times, Apr. 17, 2002, p. C1.

148. John Alderman, Sonic Boom: Napster, MP3, and the New Pioneers of Music (Cambridge, MA: Perseus, 2001); Richard Barbrook, "How the Music Industry Blew It," Salon.com, Nov. 30, 2001, salon.com/tech/books/2001/11/30/sonic_ boom/index.html (accessed 7/29/03) (calling Sonic Boom a "cautionary tale of a rich and powerful industry that was determined not to get it – and how it suffered the consequences of this mistake.").

149. Neil Strauss, "Record Labels' Answer to Napster Still Has Artists Feeling Bypassed," New York Times, Feb. 18, 2002, p. A1; Amy Harmon, "Copyright Hurdles Confront Selling of Music on the Internet," New York Times, Sept. 23, 2002, p. C1. By late 2002, the industry had ironed out some of these problems, but most online music fans still preferred the free software. "Fighting Back," Economist.com, Nov. 14, 2002, www.economist.com/agenda/PrinterFriendly.cfm? Story_ID=1446431 (accessed 9/9/03).

150. Amy Harmon, "Music Labels Coming to Grips With Web Piracy," International Herald Tribune, June 9, 2003, p. 1.

151. Amy Harmon, "Suit Settled for Students Downloading Music Online," New York Times, May 2, 2003, p. A22.

152. John Borland, "RIAA Sues Campus File-Swappers," CNet News.Com, Apr. 3, 2003, news.com.com/2100-1027-995429.html (accessed 4/7/03); Scott Carlson, "Recording Industry Sues 4 Students for Allegedly Trading Songs Within College Networks," Chronicle of Higher Education," Apr. 4, 2003,
chronicle.com/free/2003/04/2003040401t.htm (accessed 4/7/03).

153. Walt Crawford, "Why Make Records When You Can Make Enemies," Cites & Insights, July 2003, p. 3 (noting comments of Edward Felten and Jacques Distler).

154. Vincent Kiernan, "High Education Organizations Urge a Crackdown on Illegal File Sharing," Chronicle of Higher Education, Oct. 25, 2002, p. A37. Most universities shied away from policing operations of the type that the industry demanded, but in November 2002 the U.S. Naval Academy seized 100 computers from students suspected of downloading music online. Amy Harmon, "100 Computers of U.S. Midshipmen Seized," New York Times, Nov. 26, 2002, p. C1.

155. Letter to College and University Presidents from Marc Rotenberg, EPIC's executive director, and others, Nov. 6, 2002, www.epic.org/privacy/student/
p2pletter.html (accessed 7/29/03).

156. 17 U.S. Code §512(c)-(g). See the discussion of the Verizon case for more on the problems with §512 of the DMCA.

157. Declan McCullagh, "RIAA Apologizes for Threatening Letter," CNET News.com, May 12, 2003, news.com.com/2100-1025_3-1001095.html (accessed 5/15/03).

158. "Activist Network in NY Evicted From Internet by Dow, Verio," Thing.net press release, Dec. 23, 2002, www.rtmark.com/thingpr.html (accessed 9/9/03). Dow had taken over the Union Carbide Company, which owned the plant in Bhopal. Dow's take-down notice to Verio can be found at www.rtmark.com/ more/Dow-Chemical_DMCAnotice.pdf (accessed 9/9/03).

158a. Online Policy Group v. Diebold, Inc., No. C 03-04913 JF (N.D. Cal. Sept. 30, 2004). The court found that the students' and other groups' posting of the e-mails in the context of political discussion about the reliability of Diebold's voting machines was clearly fair use; indeed, "it is hard to imagine a subject the discussion of which could be more in the public interest." Slip opinion, p. 10.

159. 17 U.S. Code §512(g).

160. In re: Verizon Internet Services, 240 F. Supp.2d 24 (D.D.C. 2003) (denying motion to quash subpoenas); 258 F. Supp.2d 6 (D.D.C. 2003) (denying stay pending appeal); Verizon Internet Services, Inc.'s Brief in Support of Its Motion to Quash, In re: Verizon Internet Services, No. 1:03MS00040 (JDB) (D.D.C. March 3, 2003). The subpoena provision is 17 U.S. Code §512(h).

160a. BMG Canada Inc. et al. v. John Doe et al., 2004 FC 488 (Ottawa, Mar. 31, 2004); Jon Healey, "File Sharing Ruled Legal in Canada," Los Angeles Times, Apr. 1, 2004; Jack Kapica, "Music Industry Appeals Ruling," The Globe and Mail, Apr. 13, 2004.

161. Amy Harmon, "Efforts to Stop Music Swapping Draw More Fire," New York Times, Aug. 1, 2003, p. C1; Ted Bridis, "Senator Probes RIAA Crackdown," July 31, 2003, MSNBC News, stacks.msnbc.com/news/946802.asp?0si= (accessed 8/10/03); Amy Harmon, "Subpoenas Sent to File-Sharers Prompt Anger and Remorse," New York Times, July 28, 2003, p. C1.

162. John Borland, "Court Blocks Some File-Trading Subpoenas," CNet News.com, Aug. 8, 2003, rss.com.com/2100-1027_3-5061868.html (accessed 8/10/03); "Schools Cite Privacy Rights to Fight Music-Use Subpoenas," eSchool News, July 25, 2003, www.eschoolnews.com (accessed 8/4/03); Jay Lyman, "SBC Fights Back Over RIAA Subpoenas," E-Commerce Times, July 31, 2003, www.ectnews.com/perl/story/31236.html (accessed 8/19/03).

163. Quoted in Amy Harmon, "261 Lawsuits Filed on Music Sharing," New York Times, Sept. 9, 2003, pp. A1, C6.

164. Chris Nelson, "Epic Records Takes Steps to Seal Its Newest Music," New York Times, Sept. 16, 2002, p. C7, quoting Bart Blasengame of Details magazine.

165. Eric Taub, "DVD's Meant for Buying But Not Keeping," New York Times, July 21, 2003, p. C1; Amy Harmon, "Universal to Cut Prices of Its CD's," New York Times, Sept. 4, 2003, p. C1; Saul Hansell, "Aiming at Pornography to Hit Music Piracy," New York Times, Sept. 7, 2003, p. 1.

166. John Borland, "New Kazaa Likely to Raise Labels' Ire," CNET News.com, Sept. 22, 2002, news.com.com/2100-1023-958912.html?tag+fd_ots (accessed 7/29/03); Neil Straus, "Online Fans Start to Pay the Piper," New York Times, Sept. 25, 2002, pp. E1, E7.

167. Andrew Ross Sorkin, "Software Bullet Is Sought to Kill Musical Piracy," New York Times, pp. 1, 36.

168. Negativland, "Two Relationships to a Cultural Public Domain," Duke University Conference on the Public Domain, Nov. 9-11, 2002,
www.law.duke.edu/pd/papers/hoslerjoy.pdf (accessed 7/29/03). Another commentator noted that the purchase price of software and other commonly pirated material already takes the cost of illegal copying into account. Charles Mann, "Who Will Own Your Next Good Idea?" Atlantic Monthly, Sept. 1998,
www.theatlantic.com/issues/98sep/copy.htm (accessed 7/29/03).

169. John Alderman, Sonic Boom: Napster, MP3, and the New Pioneers of Music (Cambridge, MA: Perseus, , 2001), p. 108.

170. Bob Sullivan, "Napster or Not, File Swaps Continue," MSNBC News, Oct. 14, 2002, www.msnbc.com/news/820292.asp?0si= (accessed 9/12/03) (reporting on survey indicating 25% of file-sharers buy more); Matt Richtel, "Access to Free Online Music is Seen as a Boost to Sales," New York Times, May 6, 2002, p. 66 (reporting on survey indicating 47% increased their spending); see also Dan Bricklin, "The Recording Industry is Trying to Kill the Goose That Lays the Golden Eggs," www.bricklin.com/recordsales.htm (accessed 9/12/03) (only 13% of music buyers say downloading from the Web decreases their music purchases, while "39% say exposure to new music online increases their CD buys"); Lynette Holloway, "Arrests Illustrate a Growing Concern Over Bootlegged Recordings," New York Times, Dec. 2, 2002, p. C10.

170a. Felix Oberholzer and Koleman Strumpf, The Effect of File Sharing on Record Sales: An Empirical Analysis, p. 1, http://www.unc.edu/~cigar/papers/FileSharing_March2004.pdf.

172. Robert MacMillan, "Internet Sparks a Copyright Fire," Washington Post, June 24, 2003, www.washingtonpost.com/wp-dyn/articles/A23481-2003June23.html? nav=hptop_tb (accessed 6/16/03).

173. "Consumer Broadband and Digital Television Promotion Act" (S. 2048), 107th Congress, 2d Session (Mar. 21, 2002).

174. Deirdre Mulligan, "Digital Rights Management and Fair Use By Design," Communications of the ACM, Apr. 2003, Vol, 46, No. 4, pp. 31, 37.

175. EFF Letter to the Senate Commerce Committee, Nov. 5, 2001,
www.eff.org/IP/DMCA/20011105_eff_sssca_letter.html (accessed 7/29/03); "What is the CBDTPA?," StopPoliceware.org, www.stoppoliceware. org (accessed 11/3/02).

176. Amy Harmon, "Music Industry Won't Seek Government Aid on Piracy," New York Times, Jan. 15, 2003, p. C3.

177. "Peer to Peer Piracy Prevention Act" (H.R. 5211), 107th Congress, 2d Session (July 25, 2002); see Walt Crawford, "Why Make Records When You Can Make Enemies," Cites & Insights, July 2003, p. 4. On the states' "super DMCAs," see the list maintained by Public Knowledge, www.publicknowledge.org/reading-room/documents/policy/super-dmcas/... (accessed 8/503); and the EFF's press release, "Electronic Frontier Foundation Opposes Digital Lockdown," Apr. 14, 2003, www.eff.org/IP/DMCA/states/20030414_eff_admca_pr.php (accessed 4/22/03).

178. Laurence Winer, "Piracy v. Fair Use: Where's the Line?" Media Institute Copyright Colloquium, Dec. 18, 2002, www.mediainstitute.org/colloquium/art01_ rebuttal01.html (accessed 2/6/03).

179. David Nimmer, "A Riff on Fair Use in the Digital Millennium Copyright Act," 148 U. Pa. Law Review 673, 707 (2000).

180. "Digital Media Consumers' Rights Act of 2002" (H.R. 5544), 107th Congress, 2d Session (Oct. 3, 2002); see Declan McCullagh, "Congress Asked to Unpick Copy Lock Laws," CNET News.com, Oct. 3, 2002, news.com.com/2100-1023-960731.html (accessed 11/25/02).

181. "Digital Choice and Freedom Act of 2002" (H.R. 5522), 107th Congress, 2d Session (Oct. 2, 2002).

182. "Digital Media Consumers' Rights Act of 2002" (H.R. 107), 108th Congress, 1st Session (Jan. 7, 2003); see "The Daily Digest: U.S. Lawmakers Urge Protection of Fair Use," Streaming, Jan. 8, 2003, www.streamingmagazine.com (accessed 3/17/03).

183. Rick Boucher, "Time to Rewrite the DMCA," CNET News.com, Jan. 29, 2002, news.com.com/2010-1078-825335.html (accessed 7/29/03).

184. Lawrence Lessig, The Future of Ideas (New York: Random House, 2001), pp. 254-55.

185. "Public Domain Enhancement Act of 2003" (H.R. 2601), 108th Congress, 1st Session (June 25, 2003); see Public Knowledge, "Analysis of the Public Domain Enhancement Act," n.d., www.publicknowledge.org/issues/pdea.html (accessed 8/8/03).

186. Steve Lohr, "Champion of Open Source is Out at Hewlett-Packard," New York Times, Sept. 9, 2002, p. C4 (noting that 25 countries have shown interest in open-source software; some "would require the use of open-source software in government," though most were simply "efforts to ensure that there is an alternative to Microsoft in their critical software markets"); Jonathan Krim, "The Quiet War Over Open-Source," Washington Post, Aug. 22, 2003, www.detnews.com/2003/technology/0308/22/technology-250851.htm (accessed 8/25/03) (describing Microsoft's intense lobbying to combat the World Intellectual Property Association's interest in open-source).

187. John Markoff, "Microsoft Finds Some Doubters For the Motives of Its Largesse," New York Times, May 26, 2003, p. C1.

188. See www.osafoundation.org (accessed 8/19/03); Lawrence Fisher, "Nonprofit to Create Open Source Software," New York Times, Oct. 28, 2002, p. C3.

189. Amy Harmon, "A New Direction for Intellectual Property," New York Times, May 14, 2002, p. C4; www.creativecommons.org (accessed 9/10/03). For Lessig's full argument on open source and Internet freedom, see Lawrence Lessig, The Future of Ideas (New York: Random House, 2001).

190. Budapest Open Access Initiative (Feb. 14, 2002),
www.soros.org/openaccess/read.shtml (accessed 7/29/03).

191. "Projects - Reinventing the Public Domain," www.publicknowledge.org/ projects/reinventing-public-domain.html (accessed 9/10/03); see also Free Expression Policy Project Senior Research Fellow Nancy Kranich's pages on the "information commons" for more on the movement for alternatives to rigid copyright control, www.fepproject.org/infocommons/intro.html (accessed 8/14/03)

192. See www.eff.org for EFF's extensive archives, legal analyses, and action alerts.

193. Chilling Effects Clearinghouse, www.chillingeffects.org (accessed 7/29/03); Jonas Blank, "Weather Report," Harvard Law Bulletin, fall 2002, pp. 9-10. Participating universities are Harvard, Stanford, the University of San Francisco, the University of Maine, and the University of California at Berkeley.

194. E-mail from Wendy Seltzer, Dec. 4, 2002.