Is Free Software the RIAA's Latest Victim?

by Bryan Pfaffenberger

You'd think the Open Source community would be in an uproar about this news, but the response is limited to little more than a few wry chuckles.  According to a news bulletin on the home page of SuperPimpSoft, the purveyors  of one of the best open-source newsreaders, the current version (0.9) of the GNOME-compatible program Pan will be the last to include binary decoding capabilities. The culprit? An RIAA lawsuit.

But hold on, it's just a joke. Viewed from one angle, it's very funny indeed. If copyright holders had their way, though, we wouldn't be laughing--and that's why the community would do well to pay serious attention to the issues this hoax raises. As you'll see, the RIAA's case against Napster may well lay the legal foundation for future attempts, both in the U.S. and abroad, to pry otherwise lawful technologies out of users' hands. Will they succeed?

Ha-Ha, Only Serious

Here's the story, according to the Pan page: On May 1, 2000, attorneys representing the Recording Industry Association of America (RIAA) filed suit against SuperPimpSoft, alleging that the open source startup had "wrongly encouraged copyright violation of pictures, music and even movies by providing the ability to decode and save files posted to Usenet". And that's just the beginning of SuperPimpSoft's troubles. The page claims: "Lawyers representing the heavy metal band Metallica are said to be preparing their own suit against SuperPimpSoft, citing a Metallica "flood" that appeared on alt.binaries.sounds.mp3.humor last February. Playboy, Hustler, and the American Software Producers Against Piracy commented that they, too, wanted to 'follow suit.'"

It's all a joke, says SuperPimpSoft, but, like all great jokes, there's a serious side, too. Since the early 1990s, wealthy copyright holders have won a long series of legislative and judicial victories that, in effect, treat digital media in a way that radically alters the balance between copyright holders and users of copyrighted material. The day could soon come when copyright holder interests, such as the RIAA, succeed in their quest to deprive citizens of their right to use any technology that could be used for copyright infringement, even if the technology also has other, perfectly lawful uses.  Copyright holders have been trying for years to keep a whole string of technologies out of our hands--the Diamond Rio MP3 player is but the latest example. Will they succeed?

Back to the Betamax

How did we wind up in a situation where commercial interests could deprive citizens of technologies that have lawful applications? To understand, you need to go back to the near-frenzy among copyright holders caused by the Supreme Court's decision in the "Betamax" case (Sony v. Universal). Motion picture giants Universal and Disney feared that the VCR and home videotaping would ruin their business, put actors and directors out of work, and shut down theaters.  According to the studios, Sony was liable on grounds of contributory infringement  (knowingly and willfully providing the machinery needed to infringe), as well as vicarious infringement  (failing to stop the infringement despite the ability to do so), and subsequently enjoying a financial advantage due to this negligence (see Stolowitz 1996). Among the remedies sought by the studios was an injunction against Betamax sales--yes, you read that correctly. The studios wanted to make sure that you could not legally purchase a video tape recorder in the United States.

In its pro-Sony decision, the Supreme Court cited with approval the lower court's comments on the frightening implications of removing the Betamax from the market:

Selling a staple article of commerce--e.g., a typewriter, a recorder, a camera, a photocopying machine--technically contributes to any infringing use subsequently made thereof, but this kind of 'contribution,' if deemed sufficient as a basis for liability, would expand the theory beyond precedent and arguably beyond judicial management.... Commerce would indeed be hampered if manufacturers of staple items were held liable as contributory infringers whenever they 'constructively' knew that some purchasers on some occasions would use their product for a purpose which a court later deemed, as a matter of first impression, to be an infringement (cited in Sony v. Universal).

Emphasizing the peril to society if the studios succeeded in their quest to keep the Betamax off the market, the Supreme Court emphasized that many content producers--churches, sports teams, local community organizations and a majority of producers of televised content - had no objection to the consumer's practice of "time-shifting" broadcast video so that it could be viewed at a more convenient time. The Court therefore concluded that copyright holders could not hold a manufacturer liable for contributory or vicarious infringement if the device was used, or could potentially be used, for lawful purposes: the Court specifically stressed that the manufacturer could not be held liable for contributory infringement if  the device is "merely... capable of substantial noninfringing uses" (for a discussion, see Berschadsky 2000).

In the aftermath of the Betamax decision, and in true American style, the various interests involved crytsallized into a number of well-funded lobbying groups, including the Home Recording Rights Coalition (HRRC). An organization that might be mistaken for a group representing users' interests. It's not; the HRRC is, in fact, a coalition of electronics manufacturers, whose interests may or may not dovetail with those of users. In 1992, the HRRC caved into copyright holders and supported the Audio Home Recording Act (AHRA), an ostensibly pro-user bill; it exempts consumers from copyright violations when they record mustic for private, non-commercial use. But the AHRA sets a new standard for digital audio technologies: manufacturers of digital audio devices must register new products, pay a royalty on each device and recording medium sold, and implement serial copyright management technologies that prevent making copies of copies. Since 1992, the electronics manufacturers who caved in and backed AHRA have tried--unsuccessfully, for the most part--to profit from their collusion with copyright holders, but consumers have resisted the new, AHRA-conforming technologies. Among the casualties are digital audio tape (DAT) and, arguably, Sony's mini-discs.

A New Cause for Panic Among Copyright Holders: The Rise of the Internet

Nothing like the Internet was envisioned at the time of the AHRA, but it didn't take long for copyright holders to discover that the Web posed dangers that made the VCR look tame by comparison.  An additional problem was the AHRA itself. The act doesn't cover multipurpose devices, such as computers equipped with CD-ROM drives. When the RIAA went after the Diamond Rio MP3 player, Diamond defended itself by claiming that the Rio is a computer rather than a digital audio device (see Gosse 2000)--a bit of a stretch, arguably, but one that could win over a judge, which is precisely what happened (see Hill 2000).  Since the Rio is a computer, Diamond argued, the AHRA doesn't apply. The courts never had an opportunity to clarify the matter fully; Diamond and the RIAA dropped their various lawsuits against one another and settled out of court . Diamond is now enthusiastically backing the RIAA's plan to impose the Secure Digital Music Initiative (SDMI) on consumers.

Did Diamond cave in? In a word, yes--just like the Home Recording Rights Coalition caved in when the AHRC gave copyright holders everything they wanted with respect to new digital audio technologies. Make no mistake about it: electronics manufacturers are not users' allies in the capitalist marketplace that virtually monopolizes the distribution of copyrighted material in the U.S. and worldwide. Their incentive lies not in opposing the efforts by copyright holders to introduce Draconian changes into copyright law, but rather in delaying such efforts, so they can exploit new markets and position themselves profitably once the situation clarifies.

With the passage of the Digital Millennium Copyright Act (DMCA) in 1998, copyright holders and their newfound friends in the electronics industry may have finally received the protection they wanted. Among other things, the DMCA imposes AHRA-like controls on the distribution of copyrighted material via the Internet. And what's more, it's now a criminal offense to attempt to circumvent the copy protection schemes that prevent consumers from making unlawful copies of copyrighted media.   The DMCA gives copyright holders what they've lacked since the Betamax days: the ability to keep technologies out of consumer's hands. In unusually broad language, the DMCA criminalizes any attempt to circumvent copyright protection measures, and prohibits the manufacture or distribution of devices or programs that are designed to circumvent copyright protection measures. Under the DMCA, it's still legal to record a TV show on your VCR. But you're a criminal if you use an anti-circumvention device or program in an attempt to record a TV show on your computer's hard drive. In short, the DMCA criminalizes many acts that would otherwise have been legal under fair use guidelines (for a discussion, see Hill 2000).

The DMCA already has all the teeth it needs to criminalize infringement beyond any degree previously recognized in U.S. law, thanks to the No Electronic Theft Law (NET Act) of 1997. This act imposes Draconian penalties for copyright infringement--up to 3 years in prison and/or fines of up to $250,000--even when no monetary profit or commercial gain is derived from the infringing activity. Believe it or not, there are those who feel that the NET Act's penalties are insufficiently severe (see Bernstein 2000).

The DMCA's implications became frighteningly clear in 1999, when the MPAA went after the programmers who created code (called DeCSS) that enabled Linux users to play lawfully purchased DVD video discs on their computers (see the EFF's DVD Archive for more information). In a series of aggressive lawsuits, the MPAA's attorneys succeeded where Universal and Disney failed: namely, they were able to keep new technology out of user's hands. To be sure, it is easy to portray DeCSS as a program devised for no purpose other than to circumvent the DVD copy protection scheme. Lost in the debate over DeCSS is the fact that it does indeed have lawful uses. It permits forms of fair use such as brief excerpting, quotation, scientific study and archiving by libraries (EFF 2000) that have been consistently ruled lawful by the courts. In their successful attempt to suppress DeCSS, the MPAA has achieved what it could not do with the Betamax, namely, prevent the public from using a technology that can be potentially used for lawful purposes.

Despite all the excesses of the DMCA, copyright holders didn't get everything they wanted. Originally, the bill would have held Internet service providers (ISPs) liable for contributory and vicarious copyright infringement if they knowingly or unknowingly allowed infringing material to pass through their systems. But copyright holders underestimated the growing power and lobbying clout of ISPs, which include the likes of deep-pocketed companies such as AOL and Microsoft. In the end, the DMCA included "safe harbor" provisions for ISPs, such that they could be held liable for contributory or vicarious infringement only if they were notified that infringing material was available on their systems and failed to comply with a mandated procedure for removing it.

The Napster Factor

If the RIAA has its way, Napster will shut down, and the public will lose a service that is in fact already used for perfectly lawful purposes. Will the RIAA succeed?

The RIAA's lawsuit against Napster would attempt to shut down the service because, the RIAA alleges, Napster willfully engages in contributory infringement (knowingly inducing and materially contributing to copyright infringement) and vicarious infringement (failing to supervise its users' actions and achieving economic gain thereby). The site should be shut down, the RIAA claims, even though the RIAA itself acknowledges that Napster can be used for lawful activities, such as sharing non-copyrighted works.

It isn't difficult to convince a judge that Napster is a "pirate system," one that provides a material means for infringement that would not otherwise be available, or would not be available in such convenient form, to Internet users. And that's just what the judge in the Napster case, Marilyn Hall Patel, has apparently concluded, according to most observers. Still, Napster's attorneys contend that the company has complied with the DMCA; on occasion, the service has terminated user's accounts after allegations that the users circulated infringing materials. Napster claims protection under the DMCA's "safe harbor" provisions, and the company points to the lawful uses of its service--a clear reference to the Supreme Court's position in the Betamax case. On these grounds, the Ninth Circuit Court of Appeals recently threw out the injunction that would have shut the site down, but Napster isn't out of the woods.

Legal experts expect the Napster case to "clarify" what's meant by the terms contributory and vicarious liability in the aftermath of the Betamax case and the DMCA. If the case goes against Napster, it's bad news for users of copyrighted material. You'll be facing the very real prospect that, in the years to come, any technology or Internet service that provides the material means for copyright infringement can be summarily shut down, even if the device or service is potentially useful for lawful purposes. The day may very well come when SuperPimpSoft's hilarious hoax might not seem so funny.

 

 

Bryan Pfaffenberger is a professor in the Division of Technology, Culture, and Communication at the University of Virginia, where his research and teaching interests focus on the social issues and intellectual property dilemmas caused by the rise of global internetworking.  Although he can be reached at bp@virginia.edu, Bryan cautions that, due to his busy teaching schedule, he may not be able to respond to all messages.

 

For Further Reading

Note on non-Internet accessible materials:  I'm including these references for those who would like to delve into the complex legal issues in this case. All of these articles are accessible (full text) through the Lexis-Nexis service, a fee-based service that is often available at college, university and some local libraries. Increasingly, law reviews are making the full text of articles available to Internet users for free (see FindLaw's on-line law reviews page, located at http://lawschools.findlaw.com/journals/ip_and_cyberspace.html).

Bernstein, Karen J. "The No Electronic Theft Act: The Music Industry's New Instrument in the Fight Against Internet Piracy," UCLA Entertainment Law Review, (Spring, 2000).

Berschadsky, Ariel. "RIAA vs. Napster: A Window onto the Future of Copyright Law in the Internet Age," The John Marshall Journal of Computer & Internet Law (Spring, 2000).

EFF (Electronic Frontier Foundation), August 8, 2000. "Post-Trial Memorandum of Law, in MPAA v. 2600," available on-line at http://www.eff.org/IP/Video/MPAA_DVD_cases/20000808_ny_post_trial_brief.html.

Gosse, Elizabeth R. "Recording Industry Association of America v. Diamond Multimedia Systems, Inc.: The RIAA Could Not Stop the Rio-MP3 Files and the Audio Home Recording Act," University of San Francisco Law School Review (Spring, 2000).

Hill, Rebecca J. "Pirates of the 21st Century: The Threat and Promise of Digital Audio Technology on the Internet," Santa Clara Computer and High Technology Law Journal  (May, 2000).

Stolowitz, Micah D.  1996.  "Copyright in the Internet: A Short Primer for Business Lawyers," available on-line at http://www.techlaw.com/TextOnly/WhatsNew/copyright.html#vicarious.

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