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We have two conceptions of copyright laws in the United States. On the one hand, there is the statute, ensconced in Title 17 of the United States Code. An edifice of Byzantine complexity, this is the law as understood by the industries that depend on the copyright monopoly and who are primarily responsible for its drafting. It is also the law applied by the courts when adjudicating disputes regarding the bounds of the copyright monopoly, disputes that have generally involved competing commercial actors. On the other hand, there is the copyright law as understood by consumers. This is the unwritten law that has applied in the noncommercial world of trading homemade “mix” tapes between friends, copying and posting cartoons on office doors, and photocopying newspaper articles to pass along to interested colleagues. PIRATES AND THIEVES? Passions run high when these two notions of copyright collide, as they have in the Napster case. The copyright industries have resorted to criminal labels — “pirates” and “thieves” — in referring to Napster and Napster’s users. Of course, these same “pirates” and “thieves,” when they purchase compact discs rather than share them, are the music industry’s best customers. It is no surprise, then, that many of Napster’s users have taken to venting their sense of betrayal in both online and offline protests. But what accounts for the collision of these two notions of copyright now? After all, for much of copyright’s history they have co-existed in relative peace. The culprit, of course, is technology. The latter half of the 20th century saw a dramatic decline in the price of reproduction technologies, much to the chagrin of the copyright industry. The technological march has been virtually inexorable: photocopier, cassette tape recorder, video tape recorder, optical scanner, recordable CDs. The spread of the Internet in the last 10 years, however, has brought a new development: the precipitous decline in the price of distribution technologies. The Internet permits worldwide distribution at a trivial cost. As the beneficiaries of the statutory copyright monopoly, the copyright industries have a strong interest in neutralizing the corrosive effect of these technologies on their monopoly over reproduction and distribution. In attacking this problem, the industry has generally obeyed one eminently sensible rule: “don’t sue your customers.” Accordingly, the fight has been taken to the commercial intermediaries that make the technology available, in the form of battles in the courts and on Capitol Hill between rights holders and Internet service providers, Web hosting services, and others that act as gatekeepers for new technologies. But time is running out for this well-worn strategy. Whatever Napster’s fate may be, the technological insight that Napster represents — the power of “peer to peer” computing — is here to stay. Peer-to-peer computing’s great technological advantage is that it eliminates the commercial intermediaries. If the tools of mass distribution migrate from the commercial gatekeepers to rest in the hands of each consumer, then the collision between the written and unwritten copyright laws will be unavoidable. And that raises another important question that is easily lost in the tug-of-war between the copyright industries and Napster: What impact will the collision between the two notions of copyright have on the technological innovations behind peer-to-peer technology? PEER-TO-PEER FREEDOM So, then, what is peer-to-peer computing (known in the au courant lexicon of the venture capitalists as “P2P”)? The peer-to-peer insight generally begins from the recognition that the World Wide Web is currently structured in a hierarchical fashion. On the one hand, you have “servers” — the vast universe of computers that store Web pages, standing at the ready to deliver them upon request. This is the realm of Web developers and hosting companies. On the other hand, you have “clients” — the computers that reside on our desks at home and in the office. These are the realm of the everyday user. In a peer-to-peer network, however, every computer becomes both a server and a client. In other words, the computers that sit on our desks are no longer merely selfish “takers” from the network — they now can give back to the network. What does this have to do with Napster? Shawn Fanning, the teen-age programmer behind Napster, understood that if millions of users were going to be using the service to share MP3 files, it would be terribly wasteful for Napster to pay for the warehouses of servers that would be required to store and manage all the world’s music. The challenge would be akin to maintaining a central railway yard through which every train in the United States would have to pass, regardless of its final destination. The Napster system ingeniously cuts out the central servers altogether. Instead, Napster merely acts as a dispatcher, introducing a person looking for a song to the person who has the song available on her computer. Once the introduction is made, the actual transfer of the song is handled directly between the two computers. Why does this matter? As a matter of network architecture, the peer-to-peer insight has the potential to be incredibly useful for a wide variety of things, most of which have nothing to do with sharing music. For example, one peer-to-peer system, FreeNet, will automatically migrate files to areas of high network demand. So people will be able to download software from neighbors and thus avoid the traffic jams piled up around corporate servers. This represents only the beginning. Intel’s chief technical officer, Patrick Gelsinger, recently opined that peer-to-peer networking represented the biggest sea change in computing since the development of the World Wide Web. And IBM, Hewlett-Packard, and Intel have founded the Peer-to-Peer Working Group to foster cooperation among the many start-ups that are beginning to implement new peer-to-peer applications. What does this all mean for the future of copyright? In the American tradition, copyright law has always been a bargain between the public and the copyright industries, a bargain that has been in constant need of adjustment in the face of changing technologies. Copyright conveys a legally enforceable monopoly, created for instrumental purposes to create incentives for authorship that might not otherwise occur. As with all legal monopolies, however, copyright is a necessary evil that should be tolerated to the minimum extent necessary to ensure that the public receives the desired benefit. The Napster case itself is not very revolutionary when viewed on these terms. It is merely one in a long line of cases involving the liability of commercial intermediaries for new technologies that threaten the copyright monopoly. The more revolutionary aspect of the case is the possibility that it may be one of the last of the copyright cases to be decided on this familiar turf. As P2P technology progresses, and as people become more comfortable using it, there will be no central gatekeepers such as Napster to drag into court. The targets of any copyright infringement claims will have to be the very copyright users — consumers — whom the copyright industry has successfully avoided suing up until now. So the peer-to-peer technologies being deployed today, and that will doubtless be the subject of litigation tomorrow, will require that the copyright bargain be re-evaluated. One key area in need of examination is in the area of noncommercial uses. Long sheltered from the world of litigation, the typical American consumer has lived under a copyright law far removed from Title 17 of the United States Code. CULTURE CLASH This unwritten law includes the notion that private uses of the objects of copyright, so long as they are not for commercial gain, should be treated differently from commercial uses. For example, most Americans would agree that making a compilation CD for a few friends is not equivalent to stealing. The copyright industries are now asking that this unwritten law be ignored, and that the strict terms of Title 17 be substituted in its place. That, however, represents a change from the copyright bargain as previously experienced by the public. The second part of the copyright bargain that will require attention relates to the place of technological innovation. It is a virtual certainty that the copyright industries will press their rights, both in the courts and legislatures, against at least some of the peer-to-peer innovators. The resulting chilling effect on computer innovation may have an important effect on the course of this potentially revolutionary technology. The resolution of this important conflict will also require more than the simple application of Title 17 of the United States Code. The leading Supreme Court case addressing the uneasy relationship between technology and copyright, Sony Corp. v. Universal City Studios, represented a victory for the developers of the inexpensive Betamax video recording technology. In the wake of that decision, which the copyright industries at the time decried as a catastrophe, it has become clear that both the public and the copyright industries reaped enormous benefits. As the copyright industries seek, once again, to impose the strictures of their view of copyright law on technology innovators, the courts and legislatures would do well to keep the lessons of the Sony case in mind. Napster represents a turning point for copyright. As new peer-to-peer technologies emerge, the copyright industries will be asking that their view of copyright be imposed on those unused to its strictures, like noncommercial users and technology innovators. This represents a change. And before imposing it on members of the public, the copyright industry might want to check whether people are willing to accept it.

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