Who is to Blame for Modern-Day Piracy?
RIAA’s Misplaced Blame and a Need to Analyze
the Broader Issues of Copyright Infringement.

Piracy: robbery committed or attempted on the high seas. It is distinguished from privateering in that the pirate holds no commission from and receives the protection of no nation but usually attacks vessels of all nations. Because it is often the result of failure or laxity in patrolling sea routes, piracy flourished in times of unrest, or when navies ordinarily protecting commerce were engaged in war. Pirates found their most suitable base of operations in an archipelago that offered shelter together with proximity to trade routes. Pirates preyed upon Phoenician and Greek commerce and were so active in the 1st cent. B.C. that Rome itself was almost starved by their interception of the grain convoys. Famous names appearing in the long history of piracy include Sir Francis Drake and Sir John Hawkins, the Elizabethan buccaneers, Edward Mansfield, Henry Morgan, Jacques Nau, Jean Laffite, and Edward Teach (Blackbeard).[1]

Music has been an integral part of society and continues to play an important role. With the development of technology and the ability to reproduce and commercialize music, the creative aspect has taken on a characteristic of property. Real estate law governs the area of real property, however, with the emerging field of non-tangible property, including concepts, inventions, and high technology, the area of intellectual property law was established to govern patents, trademarks, and copyrights. In recent years under copyright law, there has been growing debate about the protection of digital music files recorded on compact discs and defining the limits of copyright law in relation to developing computer technology. A somewhat recent census statistics reflected the nation’s full-fledged entry into the computer age. U.S. residents were more likely to use a computer than ever before, according to 1997 figures. About 92 million U.S. residents 18 and older used a computer as long as four years ago, a virtual eternity in the high-technology world. That number was triple the figure from 1984.[2] In addition, high-speed broadband connections, which Jupiter [a research organization] estimates are in 15.5 million homes now.[3] Also, two in five Internet users in the United States now have high-speed access at home as telephone companies slash prices to better compete with cable broadband services. In a report Sunday, the Pew Internet and American Life Project placed the adult residential broadband population at 48 million, or one-quarter of all adult Americans.”[4] This illustrates that computers and the Internet are becoming more integral in society as music has been for centuries. As music is changing with the development of computer technology, the recording industry is at the forefront of raising issues for copyright protection for music files, while consumers and software developers are receiving the brunt of copyright infringement lawsuits.
RIAA lawsuits that have made recent headlines[5] have targeted college students and even more recently a 12-year old girl[6], threatening monetary penalties for copyright infringement between $750 to $150,000 per music file found on their computer hard drive[7]. Considering that RIAA targets individuals with 1000 or more music files on their hard drives[8], the imposition of such monetary penalties would translate into millions of dollars for one individual to pay. The RIAA seeks such penalties to serve as a deterrence from infringing on music copyright. However, the RIAA does not expect these “infringers” to pay such costly penalties[9], since most of these individuals have been college students, who barely have graduated high school and have any credit and/or income to their name. Rather, the RIAA uses the imposition of such penalties as a threat to strong-arm these individuals to settle to a much reduced amount[10]. In the case of the 12-year old girl, her mother agreed to settle for $2,000[11] instead of the potential millions of dollars her daughter was responsible for because she simply wanted to download her favorite songs, a far cry from malice against the recording industry.
It is this paper’s contention that the RIAA has misdirected their efforts to stop such copyright infringement. The RIAA tries to curb infringement bringing lawsuits and imposing the threat of an enormously large penalty. In recent articles, the wave of lawsuits targeting consumer individuals found to infringe on copyrighted music files have had an impact on infringers to stop illegally downloading copyrighted music even if it was temporary. The question as to whether litigation tactics utilized by the RIAA effectively accomplishes their goal to reduce copyright infringement is one of the considerations of this paper. Another consideration is if there are other ways to accomplish the goal of reducing copyright infringement with greater effectiveness than seeking out individual infringers and going through costly litigation procedures.
A couple of the sources to the problem of infringement begin with the development of technology and putting it into consumer markets. Though there are various uses, infringing and non-infringing, for CD recording devices, known as CD burners, such as to back up data, save large-sized files, etc., one of the main uses is to make audio CD’s from downloaded music files. The same goes for the development of blank media CD’s, CD recording software, and the development of file-sharing software, such as Napster. RIAA’s effort to protect copyright would be more effective and efficient by continued lobbying for regulation of, and working with those who research and develop such type of technologies and implementation of safeguarding technologies to disallow the copying of such music files.
Presently, Roxio, the CD recording software company, has bought the dormant Napster and modified the previously infringing software into a pay-per-download software. With the high costs of CD’s, and consumer dissatisfaction of paying $20-$25 per CD and often complaining about only 2-3 tracks being to their liking, Roxio is charging $.99 per song or $9.95 per album they download through a new version of Napster, or for $9.95 per month subscribers have unlimited streaming and downloading.[12] This alternative to charging per downloaded song seems to be a more viable bargain-for-exchange concept, allowing paying customers to pay for the songs they want to purchase, giving them the opportunity to listen to the music track first before they actually purchase it.
The first part of this paper is to give a background as to the development of file-sharing technology, its modification from centralized to decentralized systems, and the difficulty in holding peer-to-peer networks liable for copyright infringement of MP3s. The second part will discuss the DMCA and its safe-harbor provisions for ISPs and end users in their role as user infringers and the difficulty in pursuing end users as direct infringers. The third part will discuss the technology and its availability to consumers that all play a significant role to facilitate copyright infringement on the Internet. The fourth part will present some policy concerns and arguments on a broader level as to why the controversy over copyrighted music has come to its present state of turmoil and ultimately, why RIAA’s actions are ineffective. And finally, the paper will present a couple of alternatives that have been implemented and the positive steps being taken to preserve current computer technology and advance copyright protection for digital music files.

  2. Background
Users are those who have access to a computer and to the Internet, who make digital copies of sound recordings available on the Internet. By making these recording available to other users, they engage in what is known as file-sharing.[13] File-sharing technology via music files, better known as MP3’s, Moving Picture Experts Group 1 Audio Layer 3[14], allows users to copy an original recording from a compact disc with minimal loss of sound quality regardless of the number of copies made from the original or from a digital copy.[15] MP3 facilitated the swapping over the Internet because of the compressed format of the file[16], compressing music files at a 12-to-1 ratio[17], while WAV files[18] are relatively larger[19] than MP3 files because it is an uncompressed format. Consequently, because of its compressed size, MP3’s allows users to send and receive the digital audio files between computers through email or quickly download files[20] through the Internet.[21] MP3 swapping became an eye-raising phenomenon with the dawn of Napster in 1999[22]. Prior to the start of Napster there were similar type of P2P network software, such as Scour.net[23] in 1997[24], which operated under a centralized server[25] through which users would download the software and search the available computer files for download.[26] These companies had some control over the types of files on its system[27]; however, they were both ultimately unsuccessful. Napster operated under similar technology of “a centralized communication architecture to identify the ‘.mp3’ file extension available for download”, through the file-sharing software the users would download to link available users to each other.[28] The success of Napster where its predecessors failed was that Napster users could connect directly to one another via the Internet,[29] rather than connect to a central server[30] through which they would run a search of a specific music file and indirectly retrieve music files.[31] However, after the injunction[32] and the demise of Napster in July 2001[33], a slew of Napster alternatives, such as KaZaA, Morpheus, Grokster, and eDonkey[34], popped up on the Internet, providing a continued means for users to download songs without paying for them.[35]
The new generation of file-sharing systems, also known as second-generation P2P networks[36], are decentralized file-sharing systems that facilitate the sharing and downloading of MP3’s without the necessity of a centralized server through which users’ computers link through.[37] Unlike Napster, the current generation of P2P file sharing programs allows users to search music file libraries of other online users[38] directly without the use of a web site because they now connect directly to one another from computer to computer.[39] Individual users’ computers pass information from computer to computer, relaying file inquiries and responses in a decentralized P2P network.[40] Once the file is located, the user downloads the file using the file-sharing software provided by the P2P networks, without requiring a central server to index file locations.[41] The prime example of the new generation of P2P networks is Gnutella[42], which is an open source protocol for decentralized P2P.[43] P2P networks like Gnutella do not have an official client software particular to that network. Closed decentralized P2P networks that do employ a file-sharing application allow businesses to bring their workers together by enabling the facility of transferring information among each other.[44] Although businesses make use of P2P network technology to facilitate the exchange of information among its employees, these networks have the capability to facilitate the exchange of copyrighted files as well.[45] This raises the issue of whether distributing copyrighted information among a small group of private users would constitute fair use under 17 U.S.C. § 107.[46]
Recently, with the proliferation of swapping and sharing of copyrighted music files among an unlimited number of non-private users the issue of fair use has been determined not to be a viable defense to copyright infringement, as in the case against Napster.[47] Napster was held to have violated copyright laws because they did not own licenses to distribute, download, or to facilitate others in distributing or downloading any of the copyrighted music.[48] Consequently, the plaintiffs in the A&M Records, Inc. case did not receive royalties or other forms of compensation when Napster users obtained a copy of the music file.[49] The second-generation P2P networks, such as Grokster and KaZaA, which have replaced Napster, have been in litigation with the recording and entertainment industry based on the theory of vicarious infringement by facilitating the sharing of copyrighted material with their software.[50] Prior to litigation, there was difficulty in shutting down second-generation P2P networks[51] as KaZaA because it does not require a central server, and therefore no company to sue since the activity occurred on a peer-to-peer level.[52] Another difficulty to sue these P2P networks is that the networks and its users are independent of each other so that if the networks were to close its doors and deactivate all the computers in their control, users of their software could continue sharing their files with little or no interruption.[53] An example of the difficulty in holding P2P networks liable for copyright infringement is the decision in MGM Studios, Inc., where the District Court held that the defendants, Grokster, Streamcast, and KaZaA, were not infringing on copyrights directly, contributorily, or vicariously distinguishing these networks from Napster in that these networks are entirely outside the control of the defendants and the lack of evidence to indicate that the defendants have the ability to supervise and control the infringing conduct.[54]
With the difficulty in holding P2P networks liable for copyright infringement, the recording and entertainment industries have turned their attention toward Internet Service Providers (ISP) and individual users. The RIAA has recently turned its attention in curbing copyright infringement by utilizing the provisions of the Digital Millennium Copyright Act toward the ISPs. In case of Verizon Internet Services Inc., the RIAA was initially successful in serving a subpoena on Verizon to release the full identity of its customers who have been identified as copyright infringers under an anonymous online user name.[55] The purpose of retrieving the full identity[56] of the alleged copyright infringer was to then file individual lawsuits against the users[57] as the RIAA carried out in September 2003 to stop the millions of users engaging in the same activity.[58] The RIAA lawsuits against users have not gone uncontested in the same way ISPs have contested the use of subpoenas to reveal their customers identity.[59] In December 2003 the Court of Appeals for the District of Columbia handed the recording industry a setback deciding that the district court vacate its order enforcing one subpoena and to grant the Verizon’s motion to quash another subpoena based on the fact that a subpoena under 17 U.S.C. § 512 could be issued only to an ISP engaged in storing infringing material on its servers or the subject of infringing activity, and not as a mere conduit ISP.[60]
The area of intellectual property dealing with issues of copyright, though not itself a novel concept, deals with problems that innovative technology poses.[61] Copyright protection for digital music files has posed such a problem. Though the RIAA has taken the lead in shaping the protection for copyright of digital music files, the RIAA and the entertainment has had its share of victories[62] and defeats[63] in the courts. The ISPs[64] and individual users[65] have responded to the RIAA’s litigation attacks. Presently, the various parties remain at a stalemate with none of the parties making substantial gains to claim an upper-hand and to shape the issue of copyright protection for digital music files.
  1. Parties in Conflict
  2. The RIAA vs. Consumers
The Recording Industry Association of America (RIAA) is the trade group that represents the U.S. recording industry. RIAA members create, manufacture and/or distribute approximately 90% of all legitimate sound recordings produced and sold in the United States.[66] While there have been a few lawsuits that have gone to trial against consumer individuals[67], the threat of lawsuits with penalties ranging from $750 to $150,000 per music file found on the computer hard drive[68] have brought consumers to settle with the RIAA in varying amounts.[69] In fact, the RIAA has just filed another wave of lawsuits on January 21, 2004[70] in spite of their recent setback in December 2003, when their subpoena was vacated and another quashed.
  1. The RIAA vs. File-Sharing Software Providers
Beginning notably with Napster[71], there have been plenty of lawsuits that have followed against similar file-sharing software providers, i.e. Morpheus and Grokster[72], Gnutella[73], and most recently, KaZaA[74]. The method of sharing information over the Internet is through Peer-to-peer (P2P) network communication, allowing computer users with the same networking software to connect with each other and thereby facilitate access and sharing of music files.[75] By facilitating the access and sharing of MP3’s[76], the RIAA has turned its focus for litigation to P2P software providers who provide the forum through which users can share copyrighted music and try to circumvent copyright infringement liability.
  1. The RIAA vs. Internet Service Providers
In the past year, the RIAA has brought Internet Service Providers (ISP) like Verizon, Inc. [77] into court to force them to reveal the true identities of their customers who have been found to have infringed on music copyrights. While the DMCA affords the RIAA measures by which to have ISPs collaborate with their efforts, the ISPs have not yet easily acquiesced to RIAA’s demands to turn over their customers’ identities. For example, in July 2003, PacBell Internet Services, another ISP, took a more vocal stance against the RIAA, opposing the subpoenas that are being served on ISPs to reveal their customers’ identity to help tackle the problem of copyright infringement over the Internet.[78] Both the RIAA and the ISPs have had its share of victories and setbacks in the DMCA realm, with the RIAA having greater success under federal statute to obtain the identities of the individual infringers, and eventually settling for damages outside of court.

  2. The Digital Millennium Copyright Act (DMCA)
In 1995, a Clinton Administration Task Force issued a “White Paper[79] summarizing how copyright law could be applied to the Internet and recommending certain changes to increase copyright protection.[80] Congress responded to the coming of the digital technology by passing the Digital Millennium Copyright Act in 1998.[81] The DMCA served to prevent the use of circumvention technologies to access databases and other works in electronic formats.[82] The DMCA provides liability limitations for transmitting online copyrighted material[83], and it provides criminal penalties[84] for circumvention of copyright protection systems[85] and for compromising the integrity of copyright management information.[86] The DMCA includes a section that makes existing copyright law compatible with the Internet, titled “Limitations on Liability Relating to Material Online.”[87] The purpose of extending copyright law to online material was to partly amend the Digital Performance Right in Sound Recording Act (1995)[88] and to regulate the digital transmission of sound recordings through the Internet, where producers and performers did not have copyright protection for their artistic works.[89] Ultimately, the DMCA was enacted to protect both the copyright holders from infringement via the Internet and the ISPs.[90]
Section 512 of the DMCA enacted a limitation of liability for ISPs.[91] Section 512 took up and adjusted the approach taken in Religious Technology Center v. Netcom On-Line Communication Services, Inc.[92], where the court held that Netcom was not directly infringing.[93] The court held that the programmed specialized processes that made the Internet viable would not be subject to strict liability for copying[94], instead, infringing conduct would determined according to the standards of contributory infringement[95] and vicarious liability.[96] The ISPs were concerned over the possibility of excessive liability as a result of the Netcom standard and lobbied Congress to adopt “safe harbors[97] for ISPs, which shelter qualifying ISPs from copyright liability when users of the service engage in infringing activities.[98] To qualify for two of the safe harbors, the ISP must not have actual or constructive knowledge that the material or activity in question is infringing[99]; and to qualify for three of the safe harbors, the ISP must immediately disable access to the infringing material before the alleged infringer is given notice and an opportunity to be heard.[100]
Under § 512(a), an ISP is not liable for copyright infringement “by reason of the provider’s transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the ...ISP, or by reason of the intermediate and transient storage of that material” in providing this service.[101] Section 512(b) concerns the intermediate and transient storage of material on the ISP’s server, stating that system cache that is stored temporarily on the server will not automatically give rise to liability, conditioned on three occurrences.[102] In § 512(c) an ISP will not be liable as long as it does not have actual knowledge or awareness that the material is infringing a copyright.[103] And where the ISP does have actual knowledge or awareness of copyright infringement, the ISP can still escape liability as long as it acts “expeditiously” to remove the infringing material from its server.[104] Finally, § 512(d) does not hold ISPs liable for providing links or references to infringing material, given that the ISPs are not aware[105] of the infringing material the links and references point to, and in the case the ISPs are aware of the infringement, the ISP must act “expeditiously” to remove or halt the access.[106]
The DMCA facilitates the obtaining of a subpoena under § 512(h) as a means to protect copyright holders from infringement by online users.[107] Essentially, the subpoena allows copyright holders to obtain personal information on the infringing individuals by compelling the ISPs to release such information.[108] However, the subpoena will be granted on the basis that he copyright holders have a “good-faith belief[109] that the copyrighted material is being infringed, and that the copyright holders provide the ISPs with adequate information to locate the copyrighted material.[110]

  1. User Infringement
The DMCA targets ISPs and their activity in relation to copyrighted material on the Internet.[111] The DMCA delineates what is infringement and provides safe-harbor provisions to determine if ISPs are liable, or if there is question as to their liability, ways that ISPs can be free from liability.[112] However, infringing conduct does not occur on the ISP level, who provide services and access to the Internet, but issues of infringement have been determined to be either contributory[113] or vicarious[114]. Infringing conduct takes place when users take advantage of the several means at their disposal: the Internet, ISP service, and file-sharing software and products, to obtain copyrighted material without paying for them.
The courts have determined that file-sharing technology itself is not infringing[115] because of its potential for non-infringing uses, such as “sharing non-copyrighted works, or works considered to be within the public domain.”[116] File-sharing may also constitute fair use[117] such that transfer of a file through a P2P network for research or scholarly use purposes would not constitute infringement.[118] However, there are potential infringing uses for file-sharing as well, such as making music files on the Internet available for download without paying for them would constitute infringement.[119] In this regard fair use would not be a viable defense because the user receives a direct benefit, “profiting from the exploitation of the copyrighted material without paying the customary price.”[120] Because of the safe-harbor provisions of the DMCA and the difficulty in holding ISPs liable for copyright infringement, the recording industry has chosen to push for more aggressive prosecution of individual infringers as a general deterrence strategy.[121]
Users are the most likely targets for prosecution because they are most directly responsible for the infringing activity.[122] However, the millions of users online simultaneously provide some difficulties in pursuing litigation against them sufficient to make a drastic impact on copyright infringement.[123] Some of the difficulties that copyright holders can face, making criminal prosecution of individual infringers extremely complex are: “(1) finding a means to identify infringers that is both technologically possible and constitutionally acceptable; (2) finding targets whose infringing activity exceeds the statutory minimum value for criminal activity; and (3) proving the mens rea requirement of criminal infringement.”[124] In addition to the complexity of pursuing litigation against individual infringers, the recording industry also faces obstacles in carrying out lawsuits: (1) pinpointing the identity of the infringer,[125] “(2) even if the direct infringer is found, it is unlikely that that individual will have the “deep pockets” necessary to satisfy a judgment”,[126] and “(3) even if prosecutors can successfully identify targets, P2P technology, Fourth Amendment search and seizure jurisprudence, and the copyright doctrine of “fair use” may combine to prevent the successful criminal prosecution of most infringers.”[127]
Given the difficulties and the complexity of the issues to proceed with lawsuits against individual infringers, the recording industry’s efforts have been relatively unsuccessful[128] and inefficient[129] in trying to track down and identify infringers[130], serve subpoenas on ISPs to obtain the identity of the infringers[131], and then file civil lawsuits[132]. The RIAA has seen instances of success in having individual infringers settle with them for their infringement[133], but compared to the enormous volume of users and the amount of copyrighted music files being transferred and shared[134], their success is overshadowed by their ineffectiveness. A very interesting online article supports this viewpoint in that suing individuals is time-consuming and ultimately ineffective.
Reader Michaela Stephens says that if the Electronic Frontier Foundation (EFF) is right and that 60 million US folk are file sharing, it’s going to take the Recording Industry Association of America (RIAA) a mighty long time to get round to them all. “
She said: “I pulled out my calculator to see just how long it would take the RIAA to sue all 60 million P2P music file traders at a rate of 75 a day. 60,000,000/75 = 800,000 days to subpoena each person or 800,000 days/365 days in a year = 2191.78 years to subpoena each person”.
“Michaela points out that it’s unrealistic to suppose that the RIAA will have any money left in 2191 years, and she even wonders whether the trade association will exist then.”
“Plus, she points out, given the rate of tech advancement, it’s likely that we’ll have moved on to many different types of music media in even a hundred years.”
“She continues: “So let us consider more realistic numbers. The RIAA plans to sue thousands of file sharers. Working in increments of 5000: 5,000 people/75 subpoenas a day = 66 days How are they going to keep track of all these lawsuits going on? 10,000 people/75 subpoenas a day = 133 days or about 2/3 of a year.”
“Keep in mind suing 10,000 people is still only going to impact only one six thousandth (1/6000) of the file traders out there. And who is getting rich off of this? The lawyers. Betcha not a single musician will see a cent of this money.”
“15,000 people/75 subpoenas a day = 200 days (1 out of every 4000 affected) 20,000 people/75 subpoenas a day = 266.6 days (1 out of every 3000 affected)”
“When might this actually start affecting us? When 1 out of every 10 is affected? That would mean they’d have to sue six million people. That would take, ...(6,000,000/75 = 80,000)... 80,000 days ... or 2191 years! They’d have to sue our great grand children!”[135]

In addition to the game of cat and mouse[136], the recording industry has been challenged in the legal system and has faced setbacks[137] in their cause to protect copyrighted music. Given the present situation with protection of copyrighted music, RIAA opponents believe that the RIAA is misdirecting its attention by focusing too narrowly on MP3s and Internet piracy[138], rather than a bigger picture that focuses on the technology that is at the consumers’ disposal and that makes Internet piracy possible.
  2. File-sharing networks (Napster, Morpheus, Gnutella)
Referring back to Part II(A), the main part of the copyright infringement controversy begins with the development and promulgation of file-sharing or peer-to-peer networks. Second-generation P2P networks[139] are decentralized file-sharing systems that facilitate the sharing and downloading of MP3’s without the necessity of a centralized server through which users’ computers link through.[140] Current P2P file sharing programs allows users to search music file libraries of other online users[141] directly without the use of a web site because they connect directly to one another from computer to computer.[142] Individual users’ computers pass information from computer to computer, relaying file inquiries and responses in a decentralized P2P network.[143] Once the file is located, the user downloads the file using the file-sharing software provided by the P2P networks, without requiring a central server to index file locations.[144]
Though this file-sharing technology does have its share of non-infringing uses of sharing research and scholarly works and make public works more accessible through the Internet, P2P networks also provide for infringing uses in the transferring and exchange of copyrighted works that have not been paid for. Coupling this technology with consumer demands for music and the unwillingness to pay for it when music files are freely available, file-sharing technology at the disposal of consumers provides a means for consumers to carry out infringing conduct. When considering the availability to consumers, file-sharing technology plays a key role in the present copyright controversy over music files on the Internet.

  1. CD encoding/decoding software
If the user has downloaded the MP3s using a P2P network, digital multimedia software companies,[145] such as Roxio, have developed software that allows users to convert MP3s into WAV audio files (“decode”) and record (“burn”) them onto blank CD media to make personal audio CDs equaling the digital quality of original CDs. If the user, however, had original CDs, he/she could convert (“rip”) the WAV audio files and into MP3s (“encode”) using the same software, which then would be easier to manage because MP3s are smaller files and would occupy less space on the user’s hard drive. There is the possibility that with the greater consumption of MP3 players, the need for converting MP3 to WAV becomes unnecessary, as more devices can now support music in various formats with greater preference over smaller MP3 digital files.
In the same way a user could download MP3s using a P2P network, the user, who did purchase the original CD and ripped the songs and encoded them into MP3s, could just as easily share those MP3s through the same P2P networks. Other users, Users B and C, on the Internet at the same time as this particular user, User A, would upload the MP3s from User A’s hard drive and download the MP3s on Users B and C’s hard drive.
As an example, Roxio devised this software technology and placed it into consumers’ hands. On the one hand, this technology would have potential non-infringing uses to back up data onto CDs, store large quantities of information that would not fit onto traditional 1.44MB floppy disks, and make backup of CDs that were bought. All these uses would not be considered infringing on copyright. However, Roxio’s software, Easy CD & DVD Creator 6, has the potential for infringing uses, such as the capability of ripping or encoding CD WAV files into MP3s[146]. The infringing use of Roxio’s software is that a consumer can use the software to rip CD WAV files and place the MP3s on the Internet for any user to download onto their own hard drive. Essentially, Roxio has placed the infringing potential of CD recording software into the hands of its consumers who can purchase their software for $80.[147]
  1. CD Recorder Drives
CD recorder drives play an integral part in the copyright infringement controversy.[148] These drives are necessary for infringers to burn pirated music onto blank CD media with the use of CD recording software. In the same way that CD recording software also has potential non-infringing uses, CD recorders are used to facilitate those same non-infringing uses to backup data or to store large quantities of information onto CDs. But these recording devices have the same infringing uses for consumers who use them to record pirated material, particularly MP3s or WAV files.
Manufacturers of CD recorder drives, such as Iomega, have developed the capability to store data onto blank CDs. But the recording drive’s capability to store information also allows consumers to make personal audio CDs.[149] Allowing consumers to make personal audio CDs begs the question that the consumer who uses the recorder drive have audio files to create audio CDs. To be non-infringing, the consumer would have had to have legally purchased the audio CDs and then used the CD encoding/decoding software to rip the files from those CDs so as to store them on their hard drive. Considering the millions of P2P network users who exchange millions of audio files via the Internet, the assumption that the audio files used to record CDs using the CD recorder drives are legally purchased seems to be incredible. Because the millions of P2P users and the millions of MP3s available on the Internet, CD recording drives play an important and useful role in the copyright controversy as the media with which users store and record/burn audio files onto CDs. At a price of $100 for an external CD recording drive, the capacity to transfer digital audio files using this device provides no obstacle to engage in infringing activity.
News headlines surrounding the copyright infringement controversy related instances of the recording industry filing lawsuits[150] against college students[151], college campuses[152], and most recently a 12-year old girl.[153] Referring back to Part III(B), the recording industry’s pursuit of individual infringers amounts to a continuous game of cat and mouse[154] without really addressing the root of the problem of why consumers resort to copyright infringement. Without addressing this question, the recording industry is left to pursue the potential thousands of infringers on the Internet[155] without putting an end to infringement.[156]
  1. Highly priced CD’s and minimal consumer satisfaction
One reason why so many consumers resort to infringing copyrighted music files and to face the risk of being sued by the recording industry is because of the high cost of a CD and the minimal satisfaction the consumers receive in return. Considering that music CDs cost approximately between $15-20 offering 11-17 audio tracks, it would seem to be a fairly good bargain-for-exchange. However, the major complaint heard from consumers is that while they pay the $15-20 for the CD, not all the tracks are to their liking. It is often that 2-3 tracks on the CD are “hits” and become part of mainstream music, being played on radio stations. Though CD’s have maintained the same costs prior to file-sharing, the advent of file-sharing have spurred users to choose to download music illegally and for free instead of paying for CDs. When consumers are now faced with such a decision, which they didn’t have before file-sharing, to purchase a CD with minimal satisfaction or the opportunity to download audio files with maximum satisfaction for free, it becomes a bit more evident why consumers turn to P2P networks and face the risk of copyright infringement lawsuits.
An example concerns those who have been in recent headlines and named in RIAA’s lawsuits: college students. Most college students or students in general do not make an income, but money at their disposal is received from their parents or through federal loans. Students are not generally a “poorer” group, but a socio-economic group with less spending power. The limited spending power configures into their decisions as to what they pay for and, if it is a good possibility, what they can get for free. In relation to file-sharing and file-downloading, it seems that there is greater temptation for students to download for free rather than pay for them, though there are students who claim to download music only to sample the music to later go and buy the music.
Coupling the high price of purchasing CDs with the low satisfaction that students receive from it, their complaints that only 2-3 tracks of the 11-17 tracks are worth listening to have continued to be voiced since CD’s were sold. But now with the file-sharing technology available in the face of such complaints, students are faced with the decision of whether to make the purchase or not. While receiving this for free would be applicable to almost everyone as opposed to paying for it, the recent numbers of students who have been caught for copyright infringement seem that students are more likely to choose to download music illegally than adults in light of the possibility of copyright liability. Before the wave of lawsuits, students were less concerned with the idea that they could be committing a crime by getting music for free. First and foremost, getting music for free was an alternative to paying $15-20 for a CD, and then downloading MP3s almost became a fad on college campuses. Though after the lawsuits user downloading activity has dropped to a certain extent, many continue to engage in the infringing activity. An article in the Washington Post described the dip in downloading after the recent wave of RIAA’s lawsuits, but the downloading has resumed after a brief fall-off:
[Lee] Rainie [director of Pew Internet and American Life Project] said the limits of the association’s legal campaign are evident in the recent increase in active music downloaders. “In general it’s not a great long-term business strategy to sue your customer base. There is a natural limit to how far even the aggressive legal tactics of the RIAA can reach.”
The music industry has sued 1,977 people since last September, reaching settlements with 432 suspected downloaders. The average settlement amount is about $3,000, but the association can claim up to $150,000 for each pirated song.
Greg Bildson, the chief operating officer of New York-based file-sharing service Lime Wire, confirmed that the number of people using the service fell after the RIAA filed its first lawsuits last September, but those numbers bobbed up again within a few weeks.”
“BigChampagne, which tracks file-sharing use by tapping into the most popular networks and recording the number of active users, has measured a steady growth in activity every year, even after the RIAA began its legal barrage, according to Eric Garland, chief executive of the Atlanta-based company.
The peak number of users logged onto the top file-sharing networks at any one time rose from 6.7 million last fall to more than 8.8 million in the first few months of this year, Garland said.”[157]
In addition, in another article discussing the after effects of the RIAA’s wave of lawsuits, there was a notable decline in file-transfers immediately following the news of lawsuits. However, the decline has raised doubt that the lawsuits have accomplished their goal to deter usage when users are turning to other file-sharing means to continue downloading:
Indeed, yet another survey -- completed late last year by BayTSP, a company used by movie studios and recording companies to monitor P2P usage -- did not uncover a noticeable difference in usage after the first wave of suits were filed.
Instead, BayTSP noted that many online music downloaders had shifted to such alternative technologies as eDonkey and BitTorrent, which are more difficult for copyright holders to trace because they are set up to distribute large files.”[158]

It would seem plausible for the recording industry to weigh and consider the effect of CD costs and its relation to the copyright infringement controversy. Determining the sources of the infringement problem and finding ways to respond and resolve concerns and complaints would help to curb the activity, rather than for the recording industry to resort to end-user lawsuits, which may be intended to deter infringement, but do not go to the source of infringement. By suing each individual infringer, the RIAA is not going to the source of copyright infringement, but merely “cleaning up the mess”. While there are laws in place to set the rules to deter infringement and the RIAA is making use of them, the source in regards to digital music are the software, hardware, and networking means that are made available to consumers, which have infringing uses as already discussed. In addition, in regards to consumer tastes and purchasing decisions, the option and availability for consumers to download music illegally, that is, without paying for them, and having to pay for music is inviting to infringement. This paper suggests that the RIAA look to regulating, managing, and limiting the infringing uses and capabilities of the hardware and networking, rather than deter infringement through costly and time-consuming end-user litigation measures.

  1. RIAA wields unchecked ability to search consumer computers to bring suit against them
Although the RIAA is a private entity whose members create, manufacture and/or distribute approximately 90% of all legitimate sound recordings produced and sold in the United States permitting the industry the right to protect its interest, there has been contention[159] that RIAA’s actions would indirectly violate the due process of the U.S. Constitution.[160] There is also contention that RIAA’s actions would constitute an invasion of privacy against individuals by conducting illegal searches on the users’ hard drives to ultimately hold them liable for copyright infringement.[161] While infringers make their computer hard drive available for other users to search and download files, users intend to share and allow other users to search under the impression that it is so share files. Users are giving other users a sort of blanket permission to other users to search their files so that they can share files with one another. However, the users are not granting a total blanket permission to anyone and everyone if the purpose to search their hard drive is other than to share files. The RIAA’s search is not for this file-sharing purpose, but to compare files on the users’ hard drives with those files they have on file to see if the music files are original or illegal copies. It is this type of search that have raised concerns analogous to illegal searches put in place to limit government action because of the lack of due process made available for infringers to defend their action.
The recording industry could be indirectly liable for violation of due process under the Fifth Amendment utilizing the DMCA to subpoena ISPs compelling them to release their customers’ identity for alleged infringing conduct. The Fifth Amendment guarantees that no person will be deprived of life, liberty, or property, without due process of law.[162] As such it seems apparent that § 512(h) of the DMCA violates what the Fifth Amendment prohibits in that it does not allow a subpoenaed party an opportunity to object; it sanctions a pre-judgment seizure of property; and it places undue burdens upon the subpoenaed party without due process of law.[163] The subpoena issued under the DMCA is different from other subpoenas precisely that the DMCA does not give the party being subpoenaed to object and explain, but compels them without due process the information that is being demanded.
Under Rule 45 of the Federal Rules of Civil Procedure, a person who is compelled to produce and permit inspection and copying may serve a written objection to inspection or copying of the requested material on the party stipulated in the subpoena. And if the objection to the subpoena is served, the party serving the subpoena is not entitled to inspect and copy the materials.[164] The recent RIAA lawsuit[165] against Verizon Internet Services, Inc. exemplifies § 512(h)’s conflict with Rule 45 in denying Verizon the opportunity to object to the subpoena, when it clearly has the ability to do so under the rule. The conflict is more evident with Court of Appeals for the District of Columbia Circuit Court’s recent ruling in deciding to remanding RIAA’s lawsuit to have Verizon comply with the DMCA subpoena and vacating the district court’s order to enforce one subpoena and to grant the ISPs motion to quash another subpoena.[166] Presently, the DMCA procedure for granting and compelling under the subpoena has not been tested fully as to whether it is legal or not.
The issue of invasion of privacy arises with the difficulty of identifying the anonymous user allegedly pirating music. The methods that the RIAA employs to track copyrighted music files on users’ hard drives may prove to be unconstitutional. Users, by opening up their hard drive to the public to search and share files over the Internet, still maintain a right to privacy over the contents of their hard drive limiting the use of the contents to specific use of those contents. The method uses a technical procedure that examines the song files on a user’s computer and traces the digital fingerprint back to the former Napster network.[167] The recording industry “disclosed its use of a library of digital fingerprints, called “hashes,” that it can uniquely identify the MP3 files that had been traded on Napster going as far back as May 2000.”[168] The recording industry compares the digital fingerprints of the music file against the fingerprints in their library, in doing so the RIAA believes that it “can determine in some cases if someone has ripped the song from a legally purchased CD or if it was downloaded from someone else over the Internet.”[169] The point of contention is not so much the industry’s method of tracking but searching the hard drive of a user’s computer. This would implicate the Fourth Amendment assurance of a citizens’ reasonable expectation of privacy.[170] It has been held that a warrantless search or seizure of a computer or computer equipment by a nominally private party was attributable to the government for purposes of Fourth Amendment analysis.[171] A computer technician’s initial viewing of the hard drive of the infringer’s computer along with the consequent discovery of infringing material could be considered a private search analogous to the circumstances in U.S. v. Barth, the court held that the technician’s subsequent viewing of files on the hard drive was a governmental search for purposes of Fourth Amendment analysis.[172] If the inspection occurs without a warrant and the defendant has a reasonable expectation of privacy, the evidence is subject to the exclusionary rule.[173] The subpoena is not for the hard drives themselves, but the subpoenas are sought, after unpermitted searches of a user’s hard drive to locate illegal files. The subpoenas are then served on the ISPs to reveal the true identity of the user. However, what is being contended is the initial searches that the RIAA conducts that violates the right to privacy of users. In the context of criminal infringement cases, the issue of whether users retain a reasonable expectation of privacy to the contents of their hard drives. The Tenth Circuit found that a reasonable expectation of privacy for the contents of a computer hard drive to be viable.[174]
Recently, the RIAA has tried to include in an anti-terrorism bill, the USA Act, the right for them to hack into anyone’s computer and delete illegal MP3s.
An RIAA-drafted amendment according to a draft obtained by Wired News would immunize all copyright holders -- including the movie and e-book industry -- for any data losses caused by their hacking efforts or other computer intrusions “that are reasonably intended to impede or prevent” electronic piracy.”
The RIAA’s interest in the USA Act, an anti-terrorism bill that the Senate and the House approved last week, grew out of an obscure part of it called section 815. Called the “Deterrence and Prevention of Cyberterrorism” section, it says that anyone who breaks into computers and causes damage “aggregating at least $5,000 in value” in a one-year period would be committing a crime.”
“If the current version of the USA Act becomes law, the RIAA believes, it could outlaw attempts by copyright holders to break into and disable pirate FTP or websites or peer-to-peer networks. Because the bill covers aggregate damage, it could bar anti-piracy efforts that cause little harm to individual users, but meet the $5,000 threshold when combined.”
The RIAA is trying to legitimate its breaking into computers on the P2P networks in the name of copyright protection, however, there are concerns that allow the RIAA to conduct its searches and to destroy files to accomplish their goal while freeing it of liability if computers and/or files were destroyed in the process.
Legal scholars say that the original amendment the RIAA had been shopping around to members of Congress raises privacy and security concerns.”
“It could lead to some really bad outcomes, like a program purposefully intended to delete MP3s that misfunctions and erases everything on a disk.”
The draft amendment is overly broad and poorly-written, says Orin Kerr, a former Justice Department lawyer now at George Washington University. Says Kerr: “It would deny victims their right to sue copyright owners and their agents if they engaged in vigilante justice by hacking or other means in an effort to block online music distribution.”
“Another troubling thing is that they appear to be trying to limit their liability for consequential damages," says R. Polk Wagner, an assistant professor at the University of Pennsylvania’s law school. "What if their efforts caused your hard disk to become fatally corrupted?”

The copyright controversy requires a holistic and balanced approach[175], neither giving the recording industry unchecked power to search an individual’s hard drive and to deny due process to ISPs nor pulling the rug out from under the recording industry and allowing copyright infringement to run rampant, or stunt the growth of the Internet.

  2. Pay-per-download
In October 2000, Napster and BMG agreed to develop a new business model using the peer-to-peer network.[176] This model would amount to a “pay-for-play” service, where users would be able to access music files for a monthly subscription fee and owners of copyrighted works would receive royalties for this use.[177] Although the partnership between Napster and BMG would limit the access to music files owned by BMG, with the cooperation and participation of the four major recording companies[178], subscribers will have much of the same selection as they once did on the Napster system. This type of business model would satisfy both ends of the copyright controversy where users would pay for use of the copyrighted work in the form of royalties and users would still have access to music files and P2P network technology.
Similarly, in January 2003 Roxio bought the rights to Napster for $5 million.[179] Considering that the Napster name is the world’s most recognizable name in online music, Roxio plans are to modify the controversial music software that allowed millions of users to freely swap and download copyrighted music files. The plans for modification are to use the same technology of a centralized server and its corresponding software for users to continue downloading music files, legally. This time around Napster will charge its users a fee of $.99 for each song they download or $9.95 for each album. This method, which has been already in use by Apple, Wal-mart, etc., allows users to download individual songs according to their tastes, without having to pay $15-20 for a CD they end up unsatisfied with. At the same time, the users are paying for a private license of the music and therefore not infringing on the copyrighted music.
Other positive aspects of such pay-per-download systems would foster technological development of the music and computer industries as they come up with new ideas together. In addition by taking a positive stance with P2P technology and refining it for the benefit of all users, the technology will help in other ways. One way P2P technology benefits the recording industry and consumers is giving smaller, unknown artists and labels the exposure they need without having to compete with larger established labels to break into the recording industry.[180] MP3s are not only valuable for independent smaller labels, but can also be a useful and lucrative marketing tool for big labels as well, offering the recording industry exposure to millions of P2P network users.[181] The recording industry can use this as a means to test the waters with new artists, types of music, etc before they actually produce the music. P2P networks can be a money-saving enterprise and work for the benefit for all users, be it the recording industry, artists, and consumers.
  1. Regulation and enforcement of copyright protection by P2P providers
In recent news, the RIAA’s actions have prompted P2P software providers to take a more active role in protecting copyright. The former Scour.net had plans to debut a “son of Napster” called Scour Exchange[182] with the intent of abiding by the DCMA. One of its means to protect copyright from being infringed is implementing its “three-strikes” policy, where if a copyright holder notifies Scour Exchange about a particular user three times, the company will kick off that user from its network.[183]
Another way for P2P technology to legitimately regulate and enforce copyright protection is to use an encrypting an alarm code written into the MP3 files that would alert the end user that that particular MP3 file being downloaded is not authorized by the copyright holder. This would avoid concerns of Fourth Amendment illegal search and seizure because no one is searching a user’s hard drive, but the file itself would alert the end user. However, a second part of the alarm code that could have possible privacy concerns is that the coded files could be tracked by the P2P network regulator that sends programmed coding that search for these specially coded MP3s and locate those that are pirating music files. In effect, if the regulator can determine that an end user is pirating music, the use would be warned and given the opportunity to be informed and make the decision to stop their activity, otherwise face criminal charges. This would be another way for P2P networks to regulate the activity of their users working in conjunction with copyright owners, and also giving users to know that their activity is illegal and the chance to stop, rather than slapping lawsuits and subpoenas and not resolving the situation on a broader scale.
  1. Broadband regulation
An alternative idea to protecting copyrights though not aimed at completely getting rid of illegal downloading could be regulating broadband speeds. One of the sources for rampant illegal downloading can be attributed to high-speed Internet connections. Due to the size of MP3’s, and earlier modem Internet connections, users were frustrated with downloading music with lost connections and waiting for downloads that can take up to 45 minutes for one song. With the advent of high-speed Internet connections with cable modem, DSL, and T1 networks, Internet speeds increased greatly, and also increased downloads of illegal copies of digital music files in conjunction with file-sharing software.
One idea is to allow increased Internet speed for pay-per-download sites, allowing paying customers to download their legally paid music faster, while slowing down regular Internet connections for those that try to download “.mp3” and “.wav” file extensions. There would be a need to develop search engine technology to help weed out these type of extensions in relation with P2P file-sharing software technology to help reduce copyright infringement. Without going into further detail with all its complexities and whether this could actually be viable, regulation of broadband speed and its relation to the high demand for fast Internet connection to download and share numerous amounts and copies of illegal MP3’s is a potential alternative to current litigation practices targeting individual users.
  1. Radical Alternative Compensation System
More recently, a Harvard law professor came up with a way of compensating artists despite the copyright infringement occurring. This would not be a way to stop copyright infringement, but until a better way is found to deal with copyright infringement, but at a minimum compensate the artists for the infringement that has occurred.
Terry Fisher proposes that:
an alternative compensation system that would pay artists based on the popularity of their music. Artists would first have to register their work with the copyright office, which would track how many times that work was downloaded. Revenue generated from taxes on things like Internet access and the sale of MP3 players would then be used to pay the artists.”

“Fisher said his alternative model would allow music fans to obtain more music for less money, without fears of legal action from the RIAA. All artists would be paid better than they are under the current regime.”[184]

The Greek historian Plutarch gave the oldest clear definition of piracy, describing pirates as those who attack without legal authority not only ships but maritime cities.[185] The RIAA analogizes college students, a 12-year old girl, and countless other individuals as modern-day pirates who attack the recording industry without legal authority and commandeer MP3s for their own use. While their cause to protect copyrighted music files is valid, the manner in which they have proceeded is ineffective and ultimately unsuccessful. The purpose of resolving the issue of copyright infringement is not to place blame on one group of people or industry and to punish them. Modern day copyright infringement has growingly become a complex issue with various factors and players interwoven by the Internet.
While lawsuits against individuals and subpoenas served on ISPs may temporarily serve to deter potential copyright infringers from continuing with their infringing conduct, the larger issue of copyright infringement will not be adequately addressed. Copyright infringement does not exist at the level between the recording industry and the individual users, but involves many layers and facets of society. To adequately address copyright infringement requires the collaboration and participation of all those that play a significant role in relation to copyrights, such as the recording and entertainment industries, artists, P2P technology developers, computer software programmers, computer hardware manufacturers, consumer advocates, economists, government officials, etc. All of these groups need to focus on the broader problem and focus on ways to resolve issues at the source of the problems. In addition to finding ways to resolve these issues also requires alternative ways for current technology to work harmoniously with the entertainment industry and work into mainstream culture, rather than lash out at the development of technology because of the infringing uses they are used for.
The fact is the Internet and the development of computer technology are here to stay. In the same way, infringers and hackers will continue to find ways to get around the system and break rules when new rules are put in place. The challenge will be for the developing field of copyright law to effectively and efficiently respond to and deal with a rapid evolution and development of information technology.

[1] Piracy, available at http://www.bartleby.com/65/pi/piracy.html.
[2] See A U.S. Snapshot: More Diverse, Computer-Savvy, CNN.COM, March 30, 2001, available at http://www.cnn.com/2001/US/03/30/census.snapshot/.
[3] See Alan Schwarz, Take Me Out to the Website!, NEWSWEEK, October 14, 2002, at 38F.
[4] Anick Jesdanun, 2 in 5 Web Users Have Broadband at Home, AP TECHNOLOGY, April 18, 2004, available at http://story.news.yahoo.com/news?tmpl=story&u=/ap/20040418/ap_on_hi_te/broadband_study.
[5] See John Borland, RIAA Sues 261 File Swappers, CNET NEWS.COM, Sept. 8, 2003 available at http://news.com.com/2100-1023-5072564.html?tag=nl, (for an article detailing the most recent wave of lawsuits filed by the RIAA against individuals for copyright infringement).
[6] See John Borland, RIAA Settles With 12-Year Old Girl, CNET NEWS.COM, Sept. 9,2003, available at http://news.com.com/2100-1027-5073717.html?tag=nl, for an article detailing the settlement the 12-year old girl reached with the RIAA from its recent wave of lawsuits targeting copyright infringers.
[7] 17 U.S.C. § 504(c) (2002), see also Ted Bridis, Music Industry Unveils Tracking Methods, YAHOO! NEWS, Aug. 27, 2003, available at http://news.yahoo.com/news?tmpl=story2&cid=495&u=/ap/20030827/ap_en_mu/downloading_music, for a recent article on the RIAA using tracking methods to identify pirated music files on a woman’s computer and RIAA’s plan to file lawsuits with penalties allowed by copyright law.
[8] See Borland, supra note 2. “According to the RIAA, most of the people sued Monday were sharing 1,000 songs or more on the file-swapping networks.”
[9] See supra note 2. (“Few of the suits are likely to go to trial, however. In the RIAA’s previous round of copyright suits, filed against four university students in April, each defendant quickly settled, agreeing to pay damages of between $12,000 and $17,000. Many of today’s defendants are also likely to settle.”).
[10] See supra note 2. (“Sherman said ‘a handful’ of defendants had already agreed to preliminary settlement agreements, averaging payments of about $3,000 apiece.”).
[11] See supra note 3.
[12] See Associated Press, Napster, But in Name Only, WIRED.COM, July 28, 2003, available at http://www.wired.com/news/digiwood/0,1412,59798,00.html, on recent news of Roxio’s acquisition of Napster, and its plans to rollout Napster 2.0, which charges its users a price for each song they download.
[13] See Verizon Internet Services, supra note 11 at 4.
[14] See Moving Picture Experts Group Homepage, available at http://www.cselt.it/mpeg (visited Jan. 17, 2004) (describes the nature and functions of MPEG).
[15] See Recording Industry Association of America v. Diamond Multimedia Systems, Inc., 180 F.3d 1072, 1074 (1999). [hereinafter Diamond Multimedia Systems, Inc.]
[16] MP3, available at http://www.webopedia.com/TERM/M/MP3.html.
[17] See Diamond Multimedia Systems, Inc., 180 F.3d at 1074.
[18] WAV, available at http://whatis.techtarget.com/definition/0,,sid9_gci213473,00.html.
[19] Kristine J. Hoffman, Fair Use or Fair Game? The Internet, MP3, and Copyright Law, 11 ALB. L.J. SCI & TECH. 153, 15 (2000).
[20] See Aaron M. Bailey, Comment: A Nation of Felons?: Napster, the Net Act, and the Criminal Prosecution of File-Sharing, 50 AM. U. L. REV. 473, 479 (2000).
[21] Ines G. Gonzalez, BERKELEY TECHNOLOGY LAW JOURNAL ANNUAL REVIEW OF LAW AND TECHNOLOGY: I. INTELLECTUAL PROPERTY: A. COPYRIGHT: 4. Infringement: a) Audio Home Recording Act: Recording Industry Association of America, Inc. v. Diamond Multimedia Systems, Inc., 15 BERKELEY TECH. L.J. 67, 70 (2000).
[22] See http://computer.howstuffworks.com/napster1.htm, for a brief description on how its founder, Shawn Fanning, came up with the idea for Napster, and the subsequent pages give a detailed description on how Napster worked.
[23] Scour.net, available at http://www.internetnews.com/bus-news/article.php/37661.
[24] See http://www.dailybruin.ucla.edu/db/issues/00/03.07/ae.mycaster.html, for a history of the development of Scour with the primary focus to search for multimedia files.
[25] Hisanari Harry Tanaka, Article: Post-Napster: Peer-To-Peer File Sharing Systems: Current And Future Issues On Secondary Liability Under Copyright Laws In The United States And Japan, 22 LOY. L.A. ENT. L. REV. 37, 49 (2001) (describing the characteristics and differences between centralized and decentralized P2P file-sharing systems).
[26] See http://scour.sixpak.org/html1/about.phtml, for how Scour.net operates as a search engine for multimedia files on the Internet.
[27] Lou Dolinar, Napster Not Only Way to Swap a Song; Recording Firms Want Payment, CHI. TRIB., Apr. 30, 2001, at Business 3, LEXIS, News.
[28] See Verizon Internet Services, Inc., supra note 11 at 4.
[29] Lisa M. Zepeda, I. Intellectual Property A. Copyright: 1. Digital Media: d) Digital Music Distribution: A&M Records, Inc. v. Napster, Inc., 17 BERKELEY TECH. L.J. 71, 72 (2002).
[30] See Karen Heyman,, Pandora’s Box: Napster Unleashes Whole New Net Ballgame, available at http://www.laweekly.com/ink/00heyman.shtml (visited Jan. 17, 2004) (“The [Napster] software indexes he MP3s you’ve got on your hard drive, then connects to the Napster server and makes your tracks available to anybody who’s hooked up at the time – from your hard drive, not from the Napster server.”).
[31] Chris Sherman, NAPSTER: Copyright Killer or Distribution Hero?, ONLINE, November 2000.
[32] A&M Records v. Napster, Inc., 239 F.3d 1004 (2001).
[33] See http://web.utk.edu/~smarcus/History.html, for a timeline of Napster.
[34] See Verizon Internet Services, Inc., supra note 11 at 4.
[35] See http://www.ugo.com/channels/music/features/napsteralternatives/, for a brief description and the pros and cons for several alternatives to Napster that have made its way onto the Internet to replace Napster.
[36] Tanaka, supra note 25, at 49.
[37] Sherman, supra note 31.
[38] See Verizon Internet Services, Inc., supra note 11.
[39] Tanaka, supra note 25, at 41.
[40] Sherman, supra note 31.
[41] Id.
[42] See http://en2.wikipedia.org/wiki/Gnutella, for a history and description of Gnutella.
[43] See Damien A. Riehl, Electronic Commerce in the 21st Century: Article Peer-to-Peer Distribution Systems: Will Napster, Gnutella, and Freenet Create a Copyrighted Nirvana or Gehenna?, 27 WM. MITCHELL L. REV. 1761, 1776 (2001).
[44] See Ben Charney and John Borland, Is There Room on the Net for P2P?, CNET NEWS.COM (Feb. 13, 2001), available at http://news.com.com/2009-1023-252549.html.
[45] Id.
[46] See 17 U.S.C. § 107 (2003). (“Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”).
[47] See A&M Records, Inc. v. Napster, Inc., 114 F. Supp. 2d 896, 912 (2000).
[48] See id. at 902-903.
[49] Id.
[50] See MGM Studios, Inc. v. Grokster, Ltd., 259 F. Supp. 2d 1029 (2003).
[51] See Brad King, File-Trading Furor Heats Up, Wired.com, available at http://www.wired.com/news/politics/0,1283,4120,00.html (July 25, 2002).
[52] See Bailey, supra note 20.
[53] See MGM Studios, Inc. 259 F. Supp. 2d at 1041.
[54] Id. at 1045.
[55] See Recording Industry Association of America v. Verizon Internet Services, 240 F. Supp. 2d 24 (2003).
[56] See supra note 4.
[57] See John Borland, CNET NEWS.COM, available at http://news.com.com/2100-1025_3-5066754.html?tag=st_rn. (“The RIAA has used court orders to try to identify more than 1,000 computer users it alleges have been offering copyrighted songs on file-trading networks. It plans to use the information gained to file copyright lawsuits against the individuals.”).
[58] See supra note 2. (“It is simply to get peer-to-peer users to stop offering music that does not belong to them.”)
[59] See supra note 53. (“The legal motion, filed in Washington, D.C., federal court by a ‘Jane Doe’ Internet service subscriber, is the first from an individual whose personal information has been subpoenaed by the Recording Industry Association of America in recent months.”).
[60] See Verizon Internet Services, Inc., supra note 11 at 18-19.
[61] See Zepeda, supra note 29 at 71; see generally Shawn D. Chapman, Pushing the Limits of Copyright Law and Upping the Ante in the Digital World: The Strange Case of A&M Records, Inc. v. Napster, Inc., 89 KY. L.J. 793, 808 (2001).
[62] See Recording Industry Association of America, supra note 55; Recording Industry Association of America v. Verizon Internet Services, 257 F. Supp. 2d 244 (2003); Ashbel S. Green, Net Piracy Law Gets First Conviction: UO Student, PORTLAND OREGONIAN, Aug. 21, 1999, at A1; Bill Miller, Giveaways Costly for Web Pirate, WASHINGTON POST, Dec. 23, 1999, at B1; Scott Craven, "Phantom Menace" Case May Test Laws, Ariz. Republic, Sept. 22, 2000, at B1.
[63] See John Borland, Court Blocks Some File Trading Subpoenas, CNET News.com, August 8, 2003, available at http://news.com.com/2100-1027_3-5061868.html?tag=st_rn.
[64] See John Borland, ISP Group Challenges RIAA Subpoenas, CNET News.com, August 11, 2003, available at http://news.com.com/2100-1027_3-5062372.html?tag=st_rn.
[65] See John Borland, File Swapper Fights RIAA Subpoena, CNET News.com, August 21, 2003, available at http://news.com.com/2100-1025-5066754.html?tag=sas_email.
[66] See http://www.riaa.com/about/default.asp, for a brief description about RIAA and their mission statement to protect music copyright.
[67] See Ashbel S. Green, Net Piracy Law Gets First Conviction: UO Student, PORTLAND OREGONIAN, Aug. 21, 1999, at A1; Bill Miller, Giveaways Costly for Web Pirate, WASHINGTON POST, Dec. 23, 1999, at B1; Scott Craven, "Phantom Menace" Case May Test Laws, Ariz. Republic, Sept. 22, 2000, at B1.
[68] See supra note 4.
[69] See John Borland, RIAA Sues Campus File-Swappers, CNET NEWS.COM, April 3, 2003, available at http://news.com.com/2100-1027-999332.html?tag=nl, for an article detailing settlements for online piracy of four college students with the RIAA from lawsuits in May 2003.
[70] See David McGuire, RIAA Sues Song-Swapping Suspects, WASHINGTONPOST.COM, Jan. 21, 2004, available at http://story.news.yahoo.com/news?tmpl=story&u=/washpost/20040121/tc_washpost/a35281_2004jan21 (“The recording industry today reignited its legal campaign against online piracy, filing four lawsuits that target 532 people accused of illegally swapping copyrighted music on the Internet. The Recording Industry Association of America’s (RIAA) legal salvo is the first since a federal appeals court ruling last month restricted the group's ability to track down the identities of suspected file sharers. Three of the lawsuits were filed in federal court in New York City, while the fourth was filed in the Washington, D.C., federal court. ‘The message to illegal file sharers should be as clear as ever we can and will continue to file lawsuits,’ said RIAA President Cary Sherman in a telephone conference with reporters today. The lawsuits were filed after a three-judge panel on the U.S. Court of Appeals for the D.C. Circuit ruled on Dec. 19 that the 1998 Digital Millennium Copyright Act does not grant the RIAA special subpoena power to obtain the names of several Verizon Internet customers believed to be trading files online.”).
[71] A&M Records v. Napster, Inc., 239 F.3d 1004 (2001).
[72] MGM Studios, Inc. 259 F. Supp. 2d 1029.
[73] Id. at 1080.
[74] Id. at 1081.
[75] Matthew Amedeo, Comment: Shifting the Burden: the Unconstitutionality of Section 512(h) of the Digital Millennium Copyright Act and Its Impact on Internet Service Providers, 11 COMMLAW CONSPECTUS 311, 311 (2003).
[76] MGM Studios, Inc., 259 F. Supp. 2d at 312.
[77] Recording Industry Association of America v. Verizon Internet Services, 240 F. Supp. 2d 24 (2003).
[78] See Associated Press, One ISP Refuses to Yield, Wired.com, July 31, 2003, available at http://www.wired.com/news/business/0,1367,59844,00.html (“SBC Communications has joined a battle with the recording industry in a lawsuit that questions the constitutionality of the industry’s effort to track online music swappers. In a complaint filed Wednesday in a U.S. district court , SBC unit Pacific Bell Internet Services alleges that many of the subpoenas served against it by the Recording Industry Association of America were done so improperly.”).
[79] See Symposium, Symposium beyond Napster: Debating the Future of Copyright on the Internet:  Introductory Remarks, 50 AM. U.L. REV. 355, 360-361 (2000).
[81] 17 U.S.C. § 512 (2003).
[82] See Pamela Samuelson, Symposium, Intellectual Property and the Digital Economy: Why the Anti-Circumvention Regulations Need to be Revised, 14 BERKELEY TECH. L.J. 519, 519 (1999).
[83] 17 U.S.C. § 512 (2003).
[84] 17 U.S.C. § 1204 (2003).
[85] 17 U.S.C. § 1201 (2003).
[86] 17 U.S.C. § 1202 (2003).
[87] 17 U.S.C. § 512 (2003).
[88] See Digital Performance Right in Sound Recording Act, available at, http://www.copyright.gov/legislation/pl104-39.html, for the actual text of the act; see also Recording Artists’ Coalition website, available at, http://www.recordingartistscoalition.com/issues.html, for an explanation of why the DPRSRA does not help artists (visited Jan. 18, 2004).
[89] See The Digital Millennium Copyright Act of 1998, U.S. Copyright Office Summary 16 (Dec. 1998) (visited Jan. 17, 2004), available at, http://www.loc.gov/copyright/legislation/dmca.pdf (stating that the DMCA was necessary to expand copyright protection to producers and performers because of the increase in transmission of digital sound recordings in recent years).
[90] See 17 U.S.C. § 512(a)-(d) (2003).
[91] Id.
[92] Religious Technology Center v. Netcom On-Line Communication Services, Inc., 907 F. Supp. 1361 (1995).
[93] Id. at 1370-71. (“This court holds that the storage on a defendant’s system of infringing copies and retransmission to other servers is not a direct infringement by the BBS operator of the exclusive right to reproduce the work where such copies are uploaded by an infringing user.”).
[94] Id. at 1368-70. (“There is no need to construe the Act to make all of these parties infringers. Although copyright is a strict liability statute, there should still be some element of volition or causation which is lacking where a defendant’s system is merely used to create a copy by a third party.”).
[95] Id. at 1373. (“Liability for participation in copyright infringement will be established where the defendant, with knowledge of the infringing activity, induces, causes, or materially contributes to the infringing conduct of another.”).
[96] Id. at 1375. (“A defendant is liable for vicarious liability for the actions of a primary copyright infringer where the defendant: (1) has the right and ability to control the infringer’s acts and, (2) receives a direct financial benefit from the infringement. Unlike contributory infringement, knowledge is not an element of vicarious liability.”).
[97] 17 U.S.C. § 512 (The DMCA provides four non-exclusive safe harbors for qualifying ISPs. Each provision addresses a different ISP function: (a) Transitory digital network communications: Provides protection for an ISP “transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider . . .”; (b) System Caching: Limits the liability of a an ISP for caching, defined as the “temporary storage of material on a system or network”; (c) User storage: Protects an ISP who stores, at the direction of a user, material on a system controlled or operated by the ISP; (d) Information location tools: Protects an ISP for referring or linking users to an on-line location containing infringing material or activity).
[98] See generally Jonathan A. Friedman & Francis M. Buono, Using the Digital Millennium Copyright Act to Limit Potential Copyright Liability Online, 6 RICH. J.L. & TECH. 18, (Winter 1999-2000), available at, http://www.richmond.edu/jolt/v6i4/article1.html.
[99] 17 U.S.C. § 512(c)(1)(ii) and (d)(1)(B) (2003).
[100] 17 U.S.C. § 512(b)(2)(E), (c)(1)(C), (c)(3), (d)(3), (g) (2003).
[101] 17 U.S.C. § 512(a) (2003).
[102] 17 U.S.C. § 512(b) (2003) (“(1) the material having been made available on the Web by someone other than the ISP; (2) the material being transmitted at the direction of someone other than the ISP; and (3) the storage occurring as part of an automatic process for the purpose of making it available to the users.”).
[103] 17 U.S.C. § 512(c)(1)(A) (2003).
[104] 17 U.S.C. § 512(c)(1)(C) (2003).
[105] 17 U.S.C. § 512 (d)(1)(A) (2003).
[106] 17 U.S.C. § 512 (d)(1)(C) (2003).
[107] 17 U.S.C. § 512(h) (2003).
[108] 17 U.S.C. § 512(h)(3) (2003).
[109] 17 U.S.C. § 512(c)(3)(A)(v) (2003).
[110] 17 U.S.C. § 512(c)(3)(A) (2003).
[111] See generally 17 U.S.C. § 512 (2003).
[112] 17 U.S.C. § 512(a)-(d) (2003).
[113] See A&M Records, Inc. v. Napster, Inc., 114 F. Supp. 2d 896, 918 (2000).
[114] See A&M Records, Inc., 239 F.3d at 1022.
[115] See id. at 1021.
[116] Bailey, supra note 20 at 506.
[117] See 17 U.S.C. 107 (2003).
[118] See 17 U.S.C. § 107 (2003) (“Reproduction in copies or phonorecords ... for purposes such as... scholarship, research, is not an infringement of copyright.”).
[119] See United States v. LaMacchia, 871 F. Supp. 535, 545 (1994).
[120] See Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 562 (1985).
[121] See Karen Bernstein, The No Electronic Theft Act: The Music Industry’s New Instrument in the Fight Against Internet Piracy, 7 UCLA ENT. L. REV. 325, 325-26 (2000).
[122] See A&M Records, Inc., 114 F. Supp. 2d at 911.
[123] See Martin F. Halstead, Comment: The Regulated Become the Regulators – Problems and Pitfalls in the new World of Digital Copyright Legislation, 38 TULSA L.REV. 195, 221 (2002).
[124] Bailey, supra note 20 at 514.
[125] See Bailey, supra note 20 at 513-24.
[126] Michelle A. Ravn, Note: Navigating Terra Incognita: Why the Digital Millennium Copyright Act Was Needed to Chart the Course of Online Service Provider Liability for Copyright Infringement, 60 OHIO ST. L.J. 755, 758 (1999).
[127] Bailey, supra note 20 at 524-30.
[128] See Barak D. Jolish, Scuttling the Music Pirate: Protecting Recordings in the Age of the Internet, 17 ENT. & SPORTS LAW 9, 10 (1999) (“Ultimately, however, bringing copyright suits against those who post pirated music will be of only limited utility. As mentioned above, it already is difficult to find pirate web sites, which crop up and disappear within very short periods of time.”).
[129] See Tom Spring, Surfing with U.S. Customs, CNN.com, Oct. 20, 1999, available at, http://www.cnn.com/TECH/computing/9910/20/us.customs.idg/. (“While it takes little time to find illegal sites, it takes weeks or months to gather evidence, identify the owner, and shut down a site.”).
[130] See supra note 4.
[131] See supra note 55.
[132] See supra note 2.
[133] See supra notes 3 and 8.
[134] See Patrick Allossary, Clickety Click and the Music is Illegal, NATIONAL POST, Feb. 11, 2000, at C3.
[135] Inquirer Staff, RIAA Will Take 2191.78 Years to Sue Everyone, THE INQUIRER, available at http://www.theinquirer.net/?article=10733.
[136] See Jolish, supra note 117.
[137] See Verizon Internet Services, Inc., supra note 11.
[138] See Judy Bryan, Broadcast.com: MP3 Will Die, WIRED.COM, March 15, 1999, available at http://www.wired.com/news/culture/0,1284,18453,00.html (“Pirates are going to find a way to distribute illicitly, no matter what defenses companies create to safeguard music.”); Jennifer Sullivan, MP3: A Flash in the Pan, WIRED.COM, April 19, 1999, available at http://www.wired.com/news/culture/0,1284,19189-2,00.html?tw=wn_story_page_next1.
[139] Tanaka, supra note 25, at 49.
[140] Sherman, supra note 31.
[141] See Verizon Internet Services, Inc., supra note 11.
[142] Tanaka, supra note 25, at 41.
[143] Sherman, supra note 31.
[144] Id.
[145] Digital multimedia software companies such as Roxio (www.roxio.com), Nero (www.nero.com), Magix (www.magix.com), Voyetra (www.voyetra.com), and MusicMatch, Inc.(www.musicmatch.com).
[146] Easy CD & DVD Creator 6, available at http://www.roxio.com/en/products/ecdc/features.jhtml, describes one of its features as, “Includes a player, media manager, ripper, tag and sound editor - integrated in a single application. Create greatest hits CDs, preserve your old LPs and cassettes in digital format, enhance your tracks with sound effects and more. Encrypt MP3s and transfer them to your portable device to take your music anywhere.). (emphasis added)
[147] Id.
[148] See Matthew Green, Note: Napster Opens Pandora’s Box: Examining How File-Sharing Services Threaten the Enforcement of Copyright on the Internet, 63 OHIO ST. L.J. 799, 804 (2002); cf. Stephan K. Bayens, Article: The Search and Seizure of Computers: Are We Sacrificing Personal Privacy for the Advancement of Technology?, 48 DRAKE L. REV. 239, 258-66 (2000) (author discusses the implication of Fourth Amendment issues of illegal search and seizure in relation to the development of computer technology).
[149] Iomega, available at http://www.iomega.com/na/products/product_family.jsp?FOLDER%3C%3Efolder_id=63235&ASSORTMENT%3C%3East_id=63191&bmUID=1074571823362 (describes the uses for its recorder drive, “Iomega CD-RW optical drives are the perfect complement to any hard drive. They read, write, or rewrite most types of CD formats, making it a powerful tool that can be used for countless applications, including the creation of custom music CDs, digital photo albums, family history archives and customized audio CDs.”). (emphasis added)
[150] See supra note 2.
[151] See supra note 8.
[152] See Katie Dean, Schools Rebuke Music Biz Demands, WIRED.COM, Jul. 23, 2003, available at http://www.wired.com/news/digiwood/0,1412,59726,00.html (“MIT has received one subpoena and Boston College has received three subpoenas requesting the names and addresses of individuals who allegedly shared copyright music on the schools’ networks.”).
[153] See supra note 3.
[154] See Kristine J. Hoffman, Comment: Fair Use or Fair Game? The Internet, MP3 and Copyright Law, 11 ALB. L.J. SCI. & TECH. 153, 161 (2000).
[155] See Zepeda, supra note 29 at 74.
[156] See Inquirer staff, supra note 134.
[157] David McGuire, Americans Head Back Online for Music, WASHINGTONPOST.COM, available at http://story.news.yahoo.com/news?tmpl=story&u=/washpost/20040426/tc_washpost/a41467_2004apr25.
[158] Erika Morphy, Illicit Music Swapping on the Decline?, WWW.NEWSFACTOR.COM, April 27, 2004, available at http://story.news.yahoo.com/news?tmpl=story&u=/nf/20040427/tc_nf/23834.
[159] See Katie Dean, Senator Takes a Swing at RIAA, WIRED.COM, Sept. 17, 2003, available at http://www.wired.com/news/politics/0,1283,60461,00.html. (“Brownback said the DMCA subpoena process raises serious privacy and due-process concerns. ‘There are no checks, no balances, and the alleged pirate has no opportunity to defend themselves,’ Brownback said when introducing the bill. ‘My colleagues, this issue is about privacy, not piracy.’”).
[160] See Amadeo, supra note 75 at 317-24.
[161] See Bailey, supra note 20 at 524-30.
[162] U.S. CONST., amend. V.
[163] See generally id.
[164] See FED. R. CIV. P. 45 (c)(2)(B).
[165] See Recording Industry Association of America v. Verizon Internet Services, Inc., supra note 55.
[166] See Verizon Internet Services, Inc., supra note 11.
[167] See Ted Bridis, RIAA Reveals Method to Madness, WIRED.COM, August, 28, 2003, available at http://www.wired.com/news/digiwood/0,1412,60222,00.html.
[168] Id.
[169] Id.
[170] See Katz v. United States, 389 U.S. 347, 351 (1967) (holding that Fourth Amendment protections are limited to that which a citizen “seeks to preserve as private, even in an area accessible to the public.”).
[171] See Robin Cheryl Miller, Validity of Search or Seizure of Computer, Computer Disk, or Computer Peripheral Equipment, 84 A.L.R. 5th 1, 15 (2000).
[172] See id at 49.
[173] See generally Mapp v. Ohio, 367 U.S. 643, 646-60 (1961) (holding that the exclusionary rule applies to Fourth Amendment violations by states; Weeks v. United States, 232 U.S. 383, 388-98 (1914) (discussing the rationale of excluding evidence resulting from tainted searches).
[174] See United States v. Campos, 221 F.3d 1143, 1148 (2000) (compelling officers to obtain warrants to search the contents of hard drives and further requiring officers to “engage in the intermediate step of sorting various types of documents and then only search the ones specified in a warrant.”).
[175] See Joseph Levi, Will Online Service Provider Liability Unravel the Web?, 477 PLI/PAT 547, 547 (1996) (discussing steps OSPs may take to minimize their infringement liability in the absence of a statutory liability limitation).
[176] See Maggie A. Lange, Digital Music Distribution Technologies Challenge Copyright Law, 45 APR. B. B.J. 14, 31 (2001).
[177] See Ryan C. Edwards, Who Said Noting in this World is Free? A&M Records, Inc. v. Napster, Inc.: Problems Presented, Solutions Explored, and Answers Posed, 89 KY. L.J. 835, 877 (2001).
[178] See Heather D. Rafter, Streaming Into the Future: Music and Video Online, 611 PLI/PAT 395, 398 (The five major recording companies include: BMG Entertainment, Sony Music, Warner Music Group, EMI Recorded Music, and Universal Music Group.)
[179] See supra note 12.
[180] See Reuters, Big Label Embraces MP3, WIRED.COM, Nov. 4, 1998, available at http://www.wired.com/news/culture/0,1284,16034,00.html (pointing out that even though major labels fear the loss of millions of dollars in royalties, independent labels embrace the MP3 technology).
[181] See Chris Oakes, Research: MP3s Sell CDs, Wired.com, July 19, 1999, available at http://www.wired.com/news/business/0,1367,20805,00.html.
[182] See http://zdnet.com.com/2100-11-519707.html?legacy=zdnn, for a complete description of what the software is and how it works in comparison to Napster.
[183] See http://www.fitug.de/debate/0004/msg00088.html.
[184] Katie Dean, New Spin on the Music Business, WIRED.COM, May 15, 2004, available at http://www.wired.com/news/digiwood/0,1412,63474,00.html?tw=wn_tophead_2.
[185] See Krzysztof Wilczy_ski, Introduction to History of Piracy, Jan. 21, 2004, available at http://www.piratesinfo.com/history/history.php.