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In 2000, cases involving the Internet burst onto the national scene. In the wake of last year’s Microsoft antitrust mega-trial, which piqued interest throughout the vast PC-owning populace, the new buzzword was “Napster.” Even the general press, including Time and Newsweek — which both put the Napster case on their covers — were enamored of the proceedings. Simply put, the Napster saga tells how the dons of the recording industry seemingly ganged up on a “young boy and his start-up company” when he ostensibly just wanted to provide Net surfers with cool music for free. Of course, it’s not that simple. But the drama was the age-old, particularly American battle over a new frontier — copyright owners scrambling to stop infringement in a new environment vs. millions of freewheeling users reveling in the opportunity to download copyrighted music at no cost. OK — so it’s not O.J. But the cases that peppered the national media this past year promise to have profound effects on what individuals and companies will be able to do with content on the Internet. DMCA SPAWNS NAPSTER SUIT Appropriately enough, given the calendar date, the hottest cases on the copyright front dealt with the Digital Millennium Copyright Act, which added to Title 17 of the U.S. Code a range of provisions addressing copyright management systems and access-control systems. The provisions prohibit anyone’s circumventing such systems — even a user who’s doing so when accessing copies of works that he owns. They also prohibit the dissemination of tools (such as programs) that make it possible for others to circumvent those systems. Take Stephen King, for example. Earlier this year, King published an “e-book” called “Riding the Bullet” that was released in a special, Windows-based digital format that prevents readers from printing or copying the book. King, who holds the copyright, is famously a Macintosh user. The DMCA apparently prohibits anyone from offering King a software tool that would allow King himself to extract the text of his own story from its copyright-management control system to facilitate reading it on his own Mac. The DMCA also provides a few “safe harbor” provisions — including one that arguably prevents an online service provider from being liable for contributory or vicarious copyright infringement if the provider actively removes works on its service upon being given notice that they are infringing copies. This notice-and-takedown provision was one component of A & M Records Inc. v. Napster Inc. The DMCA was the impetus behind the Napster case. The story began with 19-year-old college student Sean Fanning’s writing his “first Windows program” to facilitate peer-to-peer (computer-to-computer) sharing of music files. Fanning dropped out of school to start a business based on this kind of file sharing and hoped — or so the story goes — to jump-start the market for downloadable music. But the enormous success of his software ran afoul of the Recording Industry Association of America, which sued Fanning and his Napster startup in a Northern California federal court on a contributory copyright infringement theory. Napster even hired David Boies (who has since represented Vice President Al Gore in the national presidential election court fight). At the time of the Napster trial, Boies had just finished helping the government clobber Microsoft in its giant antitrust suit. RIAA won a preliminary injunction against Napster on Aug. 10 that threatened to shut the service down. The 9th U.S. Circuit Court of Appeals stayed the injunction and allowed for an expedited appeal, which is pending. FUNDAMENTAL TENSIONS The case signals fundamental tensions created by recent expansions in both the statutory and common law of U.S. copyright conflicting with citizens doing what they want to do. Law professor Jessica Litman of Wayne State University notes that the sheer number of registered users of the Napster software is already staggering. “Napster now claims 44 million users,” Litman says. “The number of people who voted for George W. Bush for president is 49 million.” Charles Sims of New York’s Proskauer Rose agrees: “The graph of Napster’s usage made [the litigation] totally inevitable.” Adds Litman: “Napster is not music piracy in the sense people normally think of music piracy” — pirate companies pressing unlicensed recordings and then selling them. Instead, she says, the content industries have increasingly pushed to have noncommercial copying, even when done by individuals for their own enjoyment, classified as “piracy.” Although not as well known, Universal City Studios Inc. v. Reimerdes, 00-0277, was the leading case that dealt with the new law’s statutory scheme in any depth. In this case, U.S. District Judge Lewis Kaplan of the U.S. District Court for the Southern District of New York found that the posting of software that decrypts DVD movies containing copyrighted work, together with the posting of links to other Web sites containing the software, violates the DMCA’s prohibitions against disseminating anti-circumvention tools. Not surprisingly, Proskauer’s Sims, who was the lead counsel for the movie studios in the case, is happy with the result. “The decision is tremendously helpful because it will result in the broader dissemination of important works over the Internet,” Sims says. The court’s decision to construe the anti-circumvention provisions as having no fair-use exception represents the intent of the DMCA drafters, he says. “Congress considered and rejected exactly that approach,” Sims says. Boalt Hall law professor Pamela Samuelson and Wayne State’s Litman, however, say the DMCA’s anti-circumvention provisions should be read as allowing for circumvention for the purpose of fair use. Whatever happens with Reimerdes and Napster, one thing’s for sure: The debate over the DMCA won’t end with these cases. The content industries continue to worry that users, empowered by their computers and the Internet, will share copyrighted works in a way that diminishes the works’ value. DOMAIN NAME DILEMMAS No discussion of Y2K would be complete without noting that things are more than askew on the domain name front. Decisions emerging from the domain name arbitrators approved by the Internet Corporation for Assigned Names and Numbers (the international policy-making body that oversees the domain name system) have shown a strong bias toward plaintiffs. Though the arbitrators are working under an ICANN-promulgated Uniform Dispute Resolution Policy designed to protect trademark holders, the decisions fall plaintiffs’ way even when the domain name in question does not involve a registered trademark. Of the approved arbitration organizations, the World Intellectual Property Organization’s Arbitration and Mediation Center has emerged as the most popular forum for these disputes. It also favors plaintiffs a whopping 83 percent of the time. (The other three dispute resolution forums are the U.S.-based National Arbitration Forum, Canada-based eResolution, and The Institute for Dispute Resolution based in New York.) Celebrities such as Madonna and “Bridget Jones” author Helen Fielding, who don’t have registered trademarks on domain names, have recently prevailed in this forum. ICANN considered including a famous-name protection in its dispute resolution rules, but decided against doing so. Now WIPO is pushing for formal protection of famous names in the domain name context. Stanford Law School professor Lawrence Lessig says: “[The WIPO center] started out being modestly pro-plaintiff, and WIPO’s market share has increased — even if plaintiffs’ cases are shaky.” According to Lessig, plaintiffs have every incentive to go to WIPO at this point because “it’s at least a good gamble” the organization will decide in favor of the plaintiff. Correspondingly, he says, the WIPO organization feels “increasing pressure to find for the plaintiff because that’s the way you get business.” Lessig and other critics of the domain name process view its current setup as seriously broken and in need of repair. The intersection of the law with computer-technology and Internet issues has brought intellectual property into the mainstream of public news coverage this year. And it’s probably the publicity that’ll drive more people to use the Internet — which will force even more changes and challenges to our laws. Mike Godwin is chief correspondent of IP Worldwide magazine, an American Lawyer Media affiliate based in New York.

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