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The legal battle now being waged over Napster’s music file-sharing service is plainly only part of a war over the legality of new digital technologies that has serious implications for the future of the World Wide Web. One aspect of this wider conflict is the clash between rights of intellectual property owners and constitutional guarantees of freedom of speech under the First Amendment. In wrestling with this conflict, courts have been deeply troubled by a related development: the rise of “electronic civil disobedience” to challenge the rule of law itself. Increasingly, proponents of the open-source and other anti-intellectual property movements are using technology to thumb their noses at the courts’ attempts to enforce intellectual property laws. And at least some members of the judiciary are overreacting to this threat to their authority. DVD WARS Consider, for example, the recent litigation in New York regarding the digital video disk (DVD) technology typically used to store movies. In that case, Universal City Studios Inc. v. Reimerdes, Eric Corley (along with other defendants) was sued for posting on his Web site, www.2600.com, a program known as DeCSS that decrypts the copy protection system�called CSS — protecting the content on DVDs. U.S. District Judge Lewis Kaplan held that posting the program violates copyright law. Corley responded by creating and posing links on his Web site to almost 500 other sites that posted or linked to DeCSS. Kaplan ruled that Corley’s links to sites linking to DeCSS were also unlawful, under the Digital Millennium Copyright Act of 1998. Corley argued that applying the DMCA to these links was unconstitutional because, among other things, it failed to take into account First Amendment guarantees. Judge Kaplan admitted that computer code is expressive and entitled to First Amendment protection, but still gave short shrift to Corley’s arguments. According to Judge Kaplan’s opinion, when applied to linking, the DMCA does not suppress freedom of expression, but rather regulates the functionality of computer code — that is, it curbs copyright piracy. So, according to Kaplan, applying the DMCA to linking was constitutional. Kaplan was clearly aware of the potentially destructive application of his ruling to the World Wide Web by the creation of a “chilling effect.” He attempted to narrowly circumscribe his ruling on linking by creating a two-tiered constitutional structure for liability analogous to the “public figure” doctrine in defamation cases. Kaplan stated that liability arises only where there is “clear and convincing evidence” that the creator of the links has both (1) knowledge that material that violates the DMCA’s anti-circumvention provisions is on the linked-to site, and (2) an intention to create the link for the purpose of disseminating such prohibited technology. But even Kaplan’s circumscribed ruling goes too far. Without the unfettered ability to freely link to other information on the Web, its usefulness as an information medium will be effectively destroyed. In my opinion, Kaplan is wrong when he contends that “[d]efendants’ posting and their linking amount to very much the same thing.” Links are most analogous to references such as footnotes. As such, the First Amendment should fully protect them. Linking is very different from directly posting technologies designed to circumvent technological access controls for copyrighted materials, which would violate the DMCA. Moreover, tying the freedom to link to the subjective intention and knowledge of the link’s creator will create a morass of expensive and time-consuming litigation. Commentators almost universally decry this aspect of modern defamation cases, which generally involve extensive discovery concerning whether there was “actual malice.” If we have learned anything from the Supreme Court’s past 30 years of defamation jurisprudence, it should be to avoid using such standards for hyperlinking. ELECTRONIC CIVIL DISOBEDIENCE Underlying judicial hostility toward digital technologies like DeCSS is animosity to a largely unspoken but critical force: the explosion of “electronic civil disobedience.” Corley, from the DeCSS Reimerdes case, used this phrase to describe his response of linking his page to others that posted DeCSS. But the term electronic civil disobedience has an even broader reach, encompassing the increasing deployment of digital technologies to overcome the law governing intellectual property rights. DeCSS and Corley’s linking constitute two examples of it. Others are Napster and its progeny, FreeNet and Gnutella. Like Napster, both FreeNet and Gnutella permit users to swap files (including songs and other creative works subject to copyright laws) over the Internet. FreeNet’s developer, Ian Clarke, has publicly admitted that FreeNet’s purpose is to overcome the law of intellectual property and make information completely free. Yet to avoid being shut down, both FreeNet and Gnutella are decentralized, so there is no corporate entity like Napster to pursue legally. Of course, it would still be possible to pursue individuals who are swapping files. But it would be practically impossible to shut down the systems entirely. This explosion of such electronic civil disobedience clearly poses a fundamental challenge to the rule of law in our society. If technology can be effectively employed to evade the consequences of the law, the law becomes powerless. Judges are clearly deeply disturbed by this threat to their authority. For example, in the Reimerdes case, Judge Kaplan described defendants’ purpose in resorting to electronic civil disobedience as “obviously . . . to frustrate plaintiffs’ recourse to the judicial system by making effective relief difficult or impossible.” However, the judiciary’s response to the threat of electronic civil disobedience has been overly Draconian, especially in the way that it tramples on First Amendment rights in the name of property rights. Our nation’s intellectual property law has always embodied an uneasy compromise between the right of freedom of expression guaranteed by the First Amendment of the U.S. Constitution and the right of intellectual property owners to exert exclusive control over their creative works. New digital technologies like those described above threaten this balance by threatening holders of copyrights. IGNORING FAIR USE But copyright law does not only protect the holders of the copyright. The Supreme Court made clear in the landmark case Harper & Row Publishers Inc. v. Nation Enterprises (1985) that copyright law embodies the balance between copyright and free expression through the doctrine of “fair use.” The parameters of fair use are guided by the four “fair use factors” in � 107 of the Copyright Act. These are: (i) the purpose and character of the use, including whether the use is commercial or for nonprofit educational purposes; (ii) the nature of the copyrighted work; (iii) the amount and substantiality of the amount used in relation to the work as a whole; and (iv) the effect of the use upon the potential market for the copyrighted work. In spite of the fair use doctrine, courts have displayed considerable hostility toward applying it to new digital media. For example, in granting a preliminary injunction against Napster (stayed on July 28 by the 9th Circuit, pending appeal), Judge Marilyn Hall Patel rejected Napster’s arguments for fair use: “Given the vast scale of Napster use among anonymous individuals, the court finds that downloading and uploading MP3 music files with the assistance of Napster are not private uses.” Judge Patel reached this decision despite Napster’s contention that the use of its Internet peer-to-peer file-sharing technology is primarily personal and thus should be treated leniently. That is the tack that the Supreme Court took with home video recorders in the well-known case Sony Corp. of America v. Universal City Studios Inc. (1984). There, the Court, by a 5-4 majority, found that recording TV shows on a home VCR was a fair use protected by First Amendment guarantees. By failing similarly to give sufficient weight to First Amendment concerns, the judges in the DeCSS and Napster cases seem to have let their hostility to electronic civil disobedience influence their holdings. I do not deny that “electronic civil disobedience” is an increasing problem — it potentially poses serious threats to the rule of law. But judicial overreaction is not the best solution. If they really want to preserve the rule of law, the courts must ensure that they adequately protect the right of free expression.

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