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A few years back, some of the then most technologically fluent members of our society coined a condescending word for the digital Johnny-come-latelies. We were “Newbies,” because we were new to the Internet. That is, we only started using it in about 1995, when Netscape and Microsoft began mass marketing browsers with graphical user interfaces so moron-friendly that even we felt comfortable using them. Until then, we benighted Newbies had never even used — let alone abused, on hacking joyrides — the pre-World Wide Web Internet, or the ARPAnet (the original creation of the U.S. Department of Defense Advanced Research Projects Agency), which had already been linking researchers at government agencies and universities for more than 20 years. (In retrospect it is, indeed, startling to contemplate how long we Newbies did remain oblivious to the Internet. The movie WarGames, for instance, in which Matthew Broderick hacks into a secret Defense Department site and almost starts World War III, was released 17 years ago, in 1983.) But while there is no denying the dramatic reality of the digital revolution, some of that revolution’s soaring rhetoric will inevitably prove, in retrospect, to be mortifying nonsense. Though but a lowly Newbie, I feel competent to say that many among the digerati are being deluded by their youth and by the unappreciated narrowness of their expertise. I will dub these people Netwits. According to Netwits, digital information wants to be free, and, as a consequence, copyright law is dead. Copyright law simply cannot keep pace with technological revolutions being brought about by the Internet. The Internet is inherently so conducive to the indiscriminate reproduction and distribution of information, and so hostile to all attempts to control either, that all efforts to enforce copyrights on the Internet are doomed to failure. Exhibit A in the Netwit argument is the Napster litigation. Napster is the immensely popular, Web-based online music trading bazaar, which enables users to copy music stored on other users’ hard drives in the digital format known as MP3 files. According to data compiled by the Recording Industry Association of America (RIAA), of all the music being downloaded via Napster, at least 87 percent is definitely being downloaded without the permission of the copyright holders, only 1.2 percent verifiably has such permission, and the status of the remaining 12 percent of downloads could not immediately be determined. In a randomized survey of songs being made available for sharing by users of Napster, the RIAA found that every one of the 1,150 users surveyed was offering copyrighted music without permission of the rights holder. (In the litigation, Napster’s attorneys have not attempted to compute their own figures.) Netwits have convinced themselves not only that Napster is lawful to begin with, but, more importantly, that any efforts by a reactionary Newbie court system to shut it down will prove laughably futile. Napster will swiftly be replaced in the short term, they explain, by one of the numerous clone sites that have already sprung up — e.g., iMesh, CuteMX, Spinfrenzy, and Scour Exchange — and then, more enduringly, by a host of decentralized Internet-mounted software technologies or networks, like Gnutella and Freenet. The latter perform Napster-like functions without needing any Web-based hub site. They therefore offer no easy target for a suit, since there is no Web site to shut down. The Netwit arguments evidently have allure to many journalists and academicians, perhaps, in part, because they place their advocates on the apparent cutting edge. But those arguments are, so far, faring poorly in the halls of justice — halls that are, after all, still patrolled almost exclusively by Newbies. (There are no twenty-something federal judges.) The two most celebrated Internet-related copyright litigations to culminate in court decisions in recent months were, in fact, scenes of slaughter. In May, Judge Jed Rakoff in New York seemed puzzled by how obvious and indefensible the copyright infringement was in the RIAA’s case against Mp3.com. “The complex marvels of cyberspatial communication may create difficult legal issues; but not in this case,” he wrote. (Mp3.com’s “Beam-it Service” enabled users to simulate uploading music from their CDs into digital storage lockers on the Mp3.com Web site. They would place a CD in their CD drive; Mp3.com’s software would verify that it was the CD the consumer said it was; and thereafter Mp3.com would give the consumer access to that music, in the form of MP3 files, from any computer with an Internet connection. But rather than actually uploading the music from the users’ CDs — which, while probably lawful, would have been maddeningly slow given contemporary bandwidth constraints — the company was copying the music from tens of thousands of copyrighted CDs directly onto its servers, storing it as MP3 files, and giving users access to those files.) On July 26, as is now well known, more Netwit blood was spilled. Like Rakoff, Judge Marilyn Hall Patel seemed appalled by the weakness of the legal case that had been scraped together on Napster’s behalf by a legal team co-anchored by luminary David Boies of Boies, Schiller & Flexner and Laurence Pulgram and Daniel Johnson, Jr., of Fenwick & West’s San Francisco and Palo Alto offices. Boies, to be sure, had only been hastily recruited to the team in June, seven months after the RIAA filed the suit, and just one month after Napster lost an important pretrial motion. (On that occasion Patel found that Napster could not squeeze itself into an ill-fitting safe harbor established by the Digital Millennium Copyright Act of 1998, which in certain instances immunizes Internet service providers from suits arising when their subscribers send copyright infringing materials through the ISP’s wires.) But for Boies, slicing Microsoft in two was child’s play compared with defending Napster. Ruling for the RIAA on essentially every legal and factual issue presented, Patel found a “strong likelihood” that Napster was facilitating wholesale copyright infringements by its users — more than the mere “reasonable likelihood” the RIAA needed to show — and promised to issue a preliminary injunction two days later. Moreover, she delivered her decision in the form of a blistering, 30-minute, “in your face” ruling — i.e., one delivered from the bench just minutes after argument — a form of ruling that, again, suggested that she did not find the case to be a close one, and felt it imperative to stop Napster as soon as possible. She also declined to stay her injunction pending appeal. A panel of the 9th U.S. Circuit Court of Appeals — including the outspoken and prolific conservative judge Alex Kozinski — promptly did stay Patel’s order, so conceivably Napster’s lawyers may yet have the last laugh. (The appeals court placed the case on a very fast track, in which briefing will be completed by September 12, and oral argument could occur later that month.) But assume for the sake of argument that the 9th Circuit ultimately reinstates Patel’s injunction. The Netwits predict that consumers would, in that event, simply turn to one of the various Napster clones, or to Gnutella or Freenet, rendering the RIAA’s victory Pyrrhic. In the end, they insist, the Internet is inherently too hostile an environment for the copyright laws to cope with. They are wrong on both scores. To begin with, the Napster clones would represent a very brief stopgap indeed. If the Napster case is definitively resolved against Napster, the RIAA will quickly be able to obtain preliminary injunctions, if not TROs against any of those clones, assuming their investors will not have already pulled the plug on those ventures or radically altered their characters. (As of mid-July the RIAA and the Motion Picture Association of America had already jointly sued Scour, Inc., a well-financed Napster clone that offers a file-sharing service for both music and film files. Like the Napster case, Scour’s features a marquee legal cast, led by presidential impeachment defender David Kendall of Williams & Connolly for the RIAA, and famed macho trial lawyer and former U.S. Army ranger Fred Bartlit, Jr., of Chicago’s Bartlit Beck Herman Palenchar & Scott for Scour.) What about Gnutella and Freenet, though — which use no Web sites and, therefore, can’t be shut down? The closer one looks at either Gnutella or Freenet, the harder it is to imagine either ever offering mainstream alternatives to Napster. And the ability to go mainstream is critical. The recording industry has always suffered some level of piracy, and fully expects that it always will. “I don’t think any of us has the delusion that we’re ever going to turn the [piracy] faucet completely off,” says Steven Fabrizio, who heads the RIAA’s in-house litigation unit. “But it can’t be allowed to become a mainstream company.” Gnutella is software that can be downloaded for free from a number of Web sites, and which, once downloaded, enables users to seek and share files — not just MP3 files — without having to return to any Web site. Instead, the user sends inquiries directly to the hard drives of a handful of other individuals who have also downloaded Gnutella; if those hard drives don’t have what the user is looking for — which need not be limited to MP3 files — each of the solicited hard drives then forwards the inquiry to a like number of hard drives, and so on, in exponential fashion, until thousands of participating machines have been surveyed. But there are issues of “scalability” with Gnutella — how large a number of users can effectively use it at once — which raise questions about whether it could really ever substitute for a wildly popular Web site like Napster. Ian Clarke, the now 23-year-old developer of Freenet, uses the following analogy to describe Gnutella’s limitations: Searching for a particular file using Gnutella is “like walking into a crowded street and shouting, ‘Does anyone have this information?’ First, you only get it if somebody within earshot [has it]. Second, if everybody is shouting, it’s going to get very, very noisy. … All your bandwidth is taken up with messages [requesting information] bouncing around the system.” (In an e-mail, Gene Kan, a developer of Gnutella, says that Clarke’s observation is accurate.) Though Clarke says that his own baby, Freenet, does not suffer from the same scalability problem — because it uses a more sophisticated searching system — he acknowledges that Freenet is not yet ready for prime time. “It hasn’t really been streamlined for mainstream consumption,” he says. In addition, at the moment a Freenet user can find a file only if she already knows the precise name of the file she is looking for; it cannot yet be used for browsing. But while these problems can obviously be overcome, there is a greater hurdle to Freenet ever going mainstream: It creates a bizarre environment. Foremost in Clarke’s mind when he devised the system — as an undergraduate project at the University of Edinburgh — were the twin goals of preserving the anonymity of the user and protecting the system from attempts to shut it down. “Freenet has been designed to stand up to an attack by us,” Clarke explains, referring to Freenet’s own developers. That is, even if Freenet’s own inventors “were brainwashed or bribed to take the system down, they would be unable to do that.” As a consequence, no one using Freenet knows where any of the information she receives is coming from, and no one knows where that information resides. Any user’s computer (as long as it does not have a firewall) can be commandeered into use as a server on the Freenet system, storing information placed on the network by other users without the knowledge of the computer’s owner. So if you are using Freenet to look for MP3s, your computer may now be storing child pornography or terrorist political propaganda introduced into the system by other anonymous users. There is also little stability on Freenet. Information that is not used within a certain period of time will simply vanish from the network, in order to make room for new information. Clarke says he only knows anecdotally what types of things Freenet is being used for at the moment. He says he has seen some MP3s, some computer software, and “a lot of political information,” like, for instance, criticisms of the notoriously litigious Church of Scientology. As ingenious as Freenet may be, and as valuable as it might be for specialized groups of users, it is almost by definition nonmainstream. (Clarke says that about 110,000 people have downloaded Freenet since he started making it available in March. Napster, which launched in May 1999, already had an estimated 200,000 users by December, claims more than 22 million today, and projects 75 million by the end of the year — assuming the courts do not shut it down.) Does anyone seriously believe that Newbies will be lured away in droves from the comfort and safety of their AOL environment in order to dive into Freenet — and that this will happen in the absence of a national advertising campaign encouraging them to do so? (There will be no such campaign, of course, because, like Gnutella, no one stands to make money out of the Freenet network. The software’s free, and there’s no Web site to advertise on or charge admission to.) That’s not all. The overriding problem with both Gnutella and Freenet, hampering either from ever developing a mainstream user base, may be that they lack the sense of community that makes Napster so enticing. Napster creates an experience that is much like that of the age-old marketplaces or bazaars that form the heart of so many real-world communities, says Talal Shamoon. Shamoon is the senior vice president for media at InterTrust Technologies Corporation, a manufacturer of Digital Rights Management software. “Napster is optimal for trading files,” he says. “By serving as a switchpoint, it became the agora.” In contrast, Gnutella offers what he derisively calls a “Vietcong-style” file-swapping experience. “Someone pops out of the grass and says, ‘I’m here,’ and then goes back into the grass. That’s not very community-friendly.” Thus, the very thing that makes Napster a vulnerable target for litigation — its centralized Web site — is also what makes it so far superior to Gnutella and Freenet as a shopping experience. The large Napster community also tends to reassure users that most users are ordinary, good-natured people. The large community “whitewashes,” in Shamoon’s word, a shortcoming shared by all of these file-sharing technologies, which is that there is no guarantee that other users are not perverts or cranks or hackers who will try to send you static or antipiracy tirades or pornography or viruses, or who will, worse still, try to break into the files on your hard drives to which you have not authorized entry. For all of these reasons, the record labels as well as dozens of digital rights management outfits and e-commerce companies remain confident that as soon as they all perfect a functioning digital ecosystem for distributing high-quality, secure music on the Internet in a reasonably easy and inexpensive way — while ensuring that all the various rights holders get paid — most mainstream consumers will choose the conventional paying outlet rather than hazard the risks inherent in resorting to any black market. What about the larger, cooler-sounding question? Isn’t the Internet just inherently too hostile to the copyright laws, like the Netwits say? Even if there are flaws with Gnutella and Freenet, won’t there inevitably be something else down the road that overcomes even their problems? No. The architecture of the Internet does not inherently favor or disfavor the enforceability of intellectual property rights, as professor Lawrence Lessig of Stanford Law School has been trying to tell people for several years now. True, its current “default” architecture — born of the Internet’s history as a research tool for academicians and government scientists — does favor easy, open, and anonymous distribution of information, Lessig writes in his seminal 1999 book, “Code and Other Laws of Cyberspace.” But the pressures of both commerce and government are now already swiftly transforming that situation. Companies already offer digital technologies that can supply digital envelopes, or “digiboxes” or “wraps,” in which copyrighted music or movie or video files can be sealed at the behest of their copyright holders. These digital envelopes travel with the underlying digital file, refusing access to the goodies within until, for instance, the consumer antes up a fee to the copyright holder. But the envelopes can do much more than that. Since they continue to wrap the copyrighted files even after payment has been made, they can limit the number of times the consumer can open the file; they can dictate the brands or genres of machine or computer that will be permitted to play the work; and they can limit or bar the consumer from copying the work — either in whole or in part. Armed with this sort of unprecedented technological control over their works, authors and publishers will no longer need to permit consumers to use their works in ways that, until now, consumers have taken for granted and copyright law has declined to protect — deeming them legitimate, noninfringing “fair uses” of copyrighted material. For instance, we can currently videotape copyrighted television shows on our VCRs so that we can replay them at more convenient hours. But copyright owners of digital works — whether stored on DVDs or hard drives or streamed through wires or the air — will be technologically empowered to deny us the capacity to make that sort of paradigmatic “fair use” of their products. That’s why Lessig writes, “We are not entering a time when copyright is more threatened than it is in real space. We are instead entering a time when copyright is more effectively protected than at any time since Gutenberg. The power to regulate access to and use of copyrighted material is about to be perfected. Whatever the mavens of the mid-1990s may have thought, cyberspace is about to give holders of copyrighted property the biggest gift of protection they have ever known.” (Lessig does not necessarily share other opinions I espouse in this article, however. On the contrary, he filed in court a declaration on Napster’s behalf expressing his view, among other things, that shutting Napster down would not accomplish anything, due to such alternatives as Gnutella. Lessig received no fee from Napster, he writes in the affidavit, and was only compensated for his expenses.) If encryption technologies bar uses that have previously been determined to be “fair uses,” would they violate the First Amendment? Almost certainly not, since such technologies are being imposed upon products by private corporations, not by the state or federal government. (The First Amendment only protects us against the government.) Besides that, such technologies only restore the situation that used to exist prior to the development of VCRs, audiotapes, photocopiers, and, indeed, the printing press. The more interesting and difficult question arises, however, when a hacker develops software or some other device that enables her to crack the copyright holder’s encryption code, enabling her to use the copyrighted material for what was previously considered a “fair use.” In the Digital Millennium Copyright Act, Congress banned “offer[ing] to the public” products designed to “circumvent” encryption technologies that protect access to copyrighted works. The law broadly prohibits not only circumvention devices that are aimed at preventing piracy, but also those that prevent what used to be considered “fair uses” of copyrighted material. So when the Netwits claim that these anti-circumvention provisions — which certainly are government action — violate the First Amendment, they may finally be on to something. This is one of a cluster of fascinating First Amendment issues now being presented by another case in Manhattan federal district court — one that may have been decided by the time this article is published. That litigation, before Judge Lewis Kaplan, involves a now rather primitive encryption technique that a consortium of consumer electronic companies, computer manufacturers, and major studios — the DVD Copy Control Association — agreed to use back in 1996 to protect the copyrighted films being marketed on digital versatile disks (DVDs). The encryption technology, known as the Content Scramble System (CSS), was intended to ensure, among other things, that the films could not be limitlessly copied and recopied by people who had not paid for them, the way unprotected MP3 music files now are. Last year, however, a group of hackers cracked this code, and in the fall one of them, a then-15-year-old Norwegian, Jon Johansen, posted the source code to the decryption software, known as DeCSS, on his Web site. Threatened by attorneys hired by the studios, Johansen soon took the code down, but by then the bits had already hit the fan. An assortment of other Web sites around the globe were soon making DeCSS available for free download. The Motion Picture Association of America sued in January, seeking to close down three of these sites, including one run by hacker journalist Eric Corley, aka Emmanuel Goldstein, who operates www.2600.com. Though the two other defendants quickly folded, Corley resisted, obtaining assistance from the Electronic Frontier Foundation in San Francisco and the veteran First Amendment warrior Martin Garbus, of New York’s Frankfurt, Garbus, Klein & Selz. Among other things, Corley maintains that those who are distributing and downloading DeCSS do not wish to make pirated copies of DVDs — which is, indeed, an exceedingly clumsy and laborious process given contemporary bandwidth constraints and the mammoth file sizes of movies. Instead, he insists, the hackers merely wish to be able to play DVDs that they have already lawfully acquired on a computer equipped with an open-source Linux operating system, rather than one equipped with a Microsoft Windows operating system. Since such a goal would have been considered a “fair use” of a DVD, absent encryption, Corley claims that the anti-circumvention provisions of the DMCA are unconstitutional. As if that weren’t a tough enough call, the case has posed a few other conundrums. There is, for instance, the vexing problem posed by hypertext links. In January, Kaplan issued a preliminary injunction forcing Corley to stop posting DeCSS. Corley complied. But he also began exhorting others to post DeCSS on their own sites, promising to add their hyperlinked addresses to a list of such links he was already keeping on his own site. Within two months his list swelled from 161 to 431 links. Can Kaplan now bar Corley from posting these hyperlinks, as the MPAA has urged, or would that infringe Corley’s First Amendment rights? What if the online version of The New York Times links to a DeCSS-dispensing site — or to a site, like Corley’s, that links to a DeCSS-dispensing site — to let its readers assess the situation for themselves? (The Times has, in fact, linked to Corley’s site.) Then there is the whole question of whether DeCSS source code itself might be entitled to First Amendment protection. Is the code a mere lifeless object, “no more expressive than an automobile ignition key,” as Kaplan wrote in a February 2 opinion explaining why he issued the preliminary injunction? Or is it, rather, expressive speech, entitled to some First Amendment protection, as Kaplan himself appeared to be concluding, judging from his remarks last month at the close of the six-day trial in the case. (Prematurely celebrating the apparent sea change in Kaplan’s perspective, Netwits have overlooked the judge’s unassailable observation that many forms of expressive speech — like the burning of a draft card — can, nevertheless, be regulated.) In any event, Kaplan’s comments certainly suggest at a minimum that we can expect him to make a thoughtful contribution to the debate over these issues. That debate will be one that ultimately may force both Newbies and Netwits to re-examine their assumptions. Ironically, however, that debate will not be about the role of government after the digital revolution has rendered intellectual property rights unenforceable. It will be about the role of government now that the digital revolution threatens to render intellectual property rights absolute.

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