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.
Getting a Day 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 outcomelike 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?