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Have you paused lately to give thanks to the Recording Industry Association of America (RIAA) or cheers for the Motion Picture Association of America (MPAA)? I have. I keep a file of important Internet-related legal filings and decisions. Looking through it recently, I was taken with how much of the material relates to the work of the RIAA and the MPAA.
February 12, 2003
URL:http://www.drdobbs.com/hooray-riaa/184411637
These two entertainment industry associations are responsible for raising most of the important Internet-related legal issues of the last five years.
It wasn't too long ago that lawyers were debating whether "Internet law" even existed. In the mid-1990s, the University of Chicago Law School hosted one of the first conferences on the emerging "Law of Cyberspace." Judge Frank Easterbrook gave the keynote address, intriguingly named "Cyberspace and the Law of the Horse." The eager conference attendees didn't have to wait long find out exactly what that meant. Shortly after taking the podium, Judge Easterbrook told his listeners that there was no more a "law of the Internet" than there was a "law of the horse." In other words, new mediums don't create new ways of thinking about legal issues. Judge Easterbrook took the view that judges and juries apply existing legal frameworks to whatever facts they are presented, even when those facts involve something completely new like the Internet.
In his celebrated retort, "The Law of the Horse," Stanford University law professor Lawrence Lessig contemplated what a law of cyberspace might actually look like and what lessons it might provide. The Lessig view, that Internet law might actually exist and say something important about time, place, and national boundaries, was welcomed by those who were thinking about the intersection of law and technology.
Still, for most of the 1990s, the law of the Internet existed mostly in the form of law review articles like Professor Lessig's and think pieces in the trade press. Ultimately, Internet law has to be sorted out in court.
Courts don't decide issues in a vacuum just because they're interesting. The best decisions are made against a real set of facts with real parties pleading their causes.
To get a legal issue before a court then, you must first have a plaintiff. While some non-profit public interest organizations, like the American Civil Liberties Union and the Electronic Frontier Foundation, are willing to represent individuals and non-profits to bring issues of principle before the courts, most cases are brought by private parties who have a direct financial interest in the outcome—like the RIAA and the MPAA.
Were these organizations motivated plaintiffs? You be the judge. What follows is a short overview of the cases filed to date.
If two people want to share files, there's not a lot that the MPAA and RIAA can do about it. But if you develop software to make file-sharing possible over the Internet or create a directory service to make it more efficient, expect to be sued by either the RIAA or the MPAA, or both. Here's a partial list of the companies sued so far: Aimster, Audiogalaxy, Grokster, Kazaa, Madster, Morpheus, MP3.com, Music City, Napster, and Scour. (If this list teaches us nothing else, it's that anyone who ends his or her company name in "ster" is begging for a lawsuit.)
These were the among the highest profile Internet-related cases brought before the courts in recent years. At their core, they were cases that tested the extent to which copyright law could constrain technology and behavior. Is it a fair use of one's CD collection to make a digital copy for personal use? If you already own a CD, can someone offer you a digital copy made from a different physical CD?
The courts hearing these lawsuits also had to decide when a piece of software or a directory service becomes liable for copyright infringement by examining how users behave while using those services. You can record your kids singing nonsense songs at home, send the recording to Grandma over the Internet, and no one's rights have been violated. If you use any of the -ster companies' services to do the same thing, you still haven't infringed on any copyright. But we all know that those kinds of songs made up only a tiny fraction of the content traded on music and video file-sharing services. Sure, you can use peer-to-peer file-sharing services in legitimate ways. But when the predominate use infringes on protected copyrights of third parties, is the service provider responsible? What degree of knowledge must the service provider have about the activities of Internet users before it becomes legally responsible for those activities?
In October 1999, the source code for DeCSS appeared online for the first time on a Web site run by a Norwegian student. The DeCSS source code provided a key that decrypted the motion picture industry's Content Scrambling System (CSS). CSS had been developed to ensure that DVDs could be viewed but not copied. DeCSS changed that overnight. Suddenly, developers with the DeCSS code could build software to view DVDs on unlicensed systems (like Linux) and make backups of DVDs by copying them to other DVDs or a set of CD-ROMs. The code also enabled digital piracy by allowing developers to create tools that could rip a perfect digital copy of a motion picture from a DVD. That's what frightened the film industry.
The code originally appeared in Norway, but was all over the world within a few days. What made matters worse for the motion picture industry was that a sizeable number of Internet users were determined to ensure that the DeCSS code remained publicly available. They put the code on T-shirts, embedded it in software and graphics, and even set DeCSS to music by making it the lyrics of a song. This made the MPAA's job the legal equivalent of Whack-a-Mole: stop one person, and another pops up somewhere else.
The legal issues were fascinating. Was the code a violation of the law regarding circumventing copyright protection systems? Or was the publication of the code free speech? Was printing the code on a T-shirt free speech? If publishing the DeCSS code was a violation of copyright law, just who was liable for that violation, the person who first released the code or anyone who subsequently published it? If any publisher was liable, what about those who simply mirrored sites that published the code? What if you only linked to a site with the DeCSS code?
Think of any movie that you enjoyed seeing in the last twenty years. Would you pay a dollar to see it again right now? That was the promise of Movie88.com, a site launched earlier this year with a vast library of current and classic digitized movies streamed over a broadband connection for a dollar each. The only problem for Movie88.com entrepreneur Soo Tan, however, was that he didn't have the right to distribute the movies that his company featured. Companies in Hollywood owned the copyrights, and they weren't licensing them for Internet distribution. In turn, the problem for Hollywood was that Tan and Movie88 were based in Taiwan, and Tan claimed that the copyrights of the MPAA's member companies weren't recognized there. This highlights one of the most intractable legal issues of the Internet age: How do you reconcile the legal standards of different countries when it comes to data transmitted over the Internet?
As it turns out, Tan was wrong about Taiwan's copyright law. After meeting with representatives of the MPAA, the police in Taiwan shut down the Movie88 servers and arrested some of Tan's associates. But not Tan. In another game of Whack-a-Mole, he popped up a few months later with a new site, Film88.com. He had a new home too: Iran. To shut him down, the MPAA filed suit in...Los Angeles.
The Los Angeles case is only recently underway, but we already know the outcome the MPAA will win. If it hasn't already, it will soon obtain an order requiring Tan and his company to shut down Film88. But what then? How that order will be enforced against a defendant in Iran is the real question.
The opening sentence of the lawsuit filed by MPAA member companies against iCrave TV states that the case is brought "to stop one of the largest and most brazen thefts of intellectual property ever committed in the United States." Perhaps, but it was also an ingenious idea.
iCraveTV was based in Canada, where it was subject to Canada's laws. Its offices were close enough to the United States border, however, to receive television broadcasts from the major United States networks and their affiliates. Using an almost trivially simple set-up, iCraveTV received normal television broadcasts, digitized them, and streamed them to whomever wanted them over the Internet. The broadcasts were intended for free, public broadcast, right? So on one level, all iCraveTV was doing was giving the broadcasts some extra legs.
That wasn't how the broadcasters saw it though. While iCraveTV was based in Canada, the man who started it lived in Pennsylvania, so the MPAA sued him there. The legal issues presented a new twist on file sharing. Can you repurpose a public broadcast over the television airways onto the Internet? Who owns the "Internet rights" to copyrighted content?
Not all of these questions have answers yet, but answers are starting to take shape thanks to the RIAA and the MPAA. While you may be pulling for one side or the other, don't underestimate the value of legal certainty by itself, regardless of how the various cases work themselves out. Believe me, it's much easier to find investors and develop new businesses in a certain legal environment than it is when the legal issues are wide open.
The development of Internet law has even benefited from the aggressive enforcement stance taken by the recording and motion picture industries. When you push hard, you occasionally push too far. And that's when we find out where various laws and legal principles have their limits.
Here's an example. A group of Hollywood-based media companies recently lost a case before the California Supreme Court when trying to sue a Texas college student in a Los Angeles court. The companies' theory? Because the student's actions would hurt the motion picture industry, which everyone knows is based in California, the student should have reasonably expected that he could be sued in California. The California Supreme Court rejected that theory, leaving the film companies to chase the defendant in the state where he lived. When the companies pushed too hard, Internet jurisdiction found a limit.
The good comes with the bad though. Having one industry segment—media companies—make all the law on the Internet isn't a good thing. The fact that the RIAA and MPAA sometimes sue individuals, non-profits, and small start-ups that don't have the money to hire competent legal counsel doesn't help. Default judgments and legal mismatches don't make good law.
Until someone else steps into the fray though, we can at least say thanks to the RIAA and the MPAA for advancing the issues. You may not like the outcome, but certainty counts for a lot.
Bret A. Fausett is an intellectual property and Internet attorney with Hancock, Rothert & Bunshoft. You can reach him at [email protected].
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