Harmonizing fair use and self-help copyright protection of digital music.

• Author: Weiss, Jacob

Before the summer of 2003, there appeared to be little chance that the five major record companies and their trade group, the Recording Industry Association of America ("RIAA"), would sue any more than the most egregious copyright infringers among the millions of file sharers in the United States and abroad. A campaign of mass litigation would be an unfeasible undertaking. For one, there were countless infringers. Furthermore, it was, and still is, impossible to know exactly which file sharer performed the act of downloading, as only the IP address is obtainable and identifiable. Moreover, the record companies would not want to alienate a nation of music lovers, the same people who, presumably, continue to legitimately purchase albums in stores.

Thus, it appeared that the record companies would resort solely to technological means to stop widespread file sharing and copyright infringement, evidenced by Congress's attempts to legislate these copyright-protective self-help tactics. Of course, things have changed. The initial premise, that the record companies would not and could not sue, is wrong.

How successful is this current campaign? According to Nielsen//NetRatings, the number of users of KaZaA, the current standard for file sharing, is down forty-one percent since the lawsuits began. (1) This equates to 2.6 million users abandoning the software within a two-month period. (2) There are of course still 3.9 million undeterred file sharers in the KaZaA networks, with many millions more using other file sharing software programs. Moreover, a recent study by the Gallup Poll organization found that eighty-three percent of American teenagers found free file sharing to be morally acceptable. (3) Of the 261 users sued on September 8, 2003 by the RIAA, only fifty-two had settled by October 1, 2003. (4) When and if the remaining suits go to trial, the RIAA will need to win every case to ensure an exaggerated deterrent effect of suing only .004 percent of all U.S. infringers. If the suits fail, file sharing traffic will resume to normal astronomical levels, and copyright owners will resort to technological methods of protection.

As long as there are technological ways of obtaining free music, there must be technological means of combating infringement. Thus, the suits of September 2003 are likely to be only a time-saving device for the record companies to develop effective anti-infringement technology and for Congress to craft law that allows for copyright justice inside the networks and outside of the courts.

ABSTRACT

Copyright owners have begun to develop and utilize technologies to prevent the infringement that has occurred in peer-to-peer file transfer networks. The legislature and courts, largely ineffective in their efforts to stop the widespread copy and transfer, have been vocal about the owners' self-help campaign. There are a number of bills in Congress that would allow anything from decoy MP3 swarming, to albums that crash computers, to permission for a regulatory body to enter the hard drives of personal computers and delete questionable files. Other bills, however, are attempting to outline a new, digital consumer's bill of rights. Traditionally, there has been little support for self-help in the American legal paradigm. These new technologies are forcing a re-evaluation of self-help, and seem to propose that technological problems require technological solutions. This note argues that legislative allowances for self-help copyright protection must reflect a balance between the obligation to end rampant piracy and jurisprudence that makes the process of law the foundation of societal harmony. Bills of rights are too weakly written, fair notice is but a beginning to the protections deserved by fair users, and free license to copyright owners would cultivate a brutally crippling digital war that our legal system would be unable to contain.

PREFACE

The Apple iPod is a portable hard drive, initially available in five, ten, and twenty-gigabyte storage capacities. It is about the size of a wallet. It is like a walkman, in that it includes a single program (5) that plays MP3 music files. (6) Five gigabytes can store anywhere between 1000 and 1500 songs, so the twenty gigabyte iPod owner would be able to listen to music for about two and a half weeks straight without hearing the same song twice. Out of the box, there is a protective sticker on the iPod screen that reads, "Don't steal music."

This warning is not intended to be sarcastic, because there is a completely legitimate, non-copyright-infringing manner in which one can use the iPod. One simply needs two and a half weeks worth of store-purchased albums (7) and the patience to convert all the songs to MP3 format. It is entirely possible that an iPod owner would do this. It is not likely, however, considering how easy it is to steal music today.

How easy is it? The process is quite simple. Starting with a personal computer ("PC"), an Internet connection, and a single store-bought compact disc ("CD"), the user uploads music to her hard drive. With MP3 encoding software, (8) which ships with most operating systems, she compresses a song from the CD to about one-tenth of its original size. (9) However, the sound quality is not nearly divided to such a degree. This is because MP3 encoding involves a process by which certain sound frequencies, inaudible to the human ear, are extracted, reducing the file size. (10) Psychoacoustically, the listener hears little to no difference. (11) Moreover, the drastic file size reduction frees up space on the hard drive and makes Internet transfer ten times faster. Enter the Napsters (12) and Gnutellas, (13) which are peer-to-peer ("P2P") file transfer systems that allow one user to copy an MP3 file from another user's hard drive, and free music is suddenly everywhere.

Napster was ultimately enjoined from continuing business. (14) However, Napster was a legally vulnerable company, with a centralized mainframe that controlled the transfers. (15) Thus, a court could shut it down. (16) However, the new Gnutella technology appears immune from similar legal action. (17) Gnutella is as effective as Napster was in allowing for file searches and transfers, but it is not a company, and has no centralized mainframe to estop. (18) Gnutella is a piece of software that, once widely disseminated, allows users to connect with one another through freely formed, agile, largely impregnable networks. (19) Moreover, Gnutella was written in open-source code, which enables any software author to copy it, improve it, and create new versions. (20) Most, if not all of these clones can interact with one another. (21) The result is a world wide web of free music seekers operating independently in localized cells.

Copyright owners are livid, and the current means of legal recourse are sluggish and ineffective. Simply put, the law is slower than the technology, and smaller than its users. In turn, copyright owners have begun to develop their own technology to battle infringement, and the law may be applauding these efforts.

Consequently, this note will examine the new copyright protection technologies, their varying degrees of effectiveness in preventing or punishing infringement, and the legislative reaction to copyright owners employing certain aggressive technologies. Seeking a balance between the impetus to protect copyrighted works from infringement and the societal need to prohibit digital vigilantism, this note will conclude with a proposal for an administrative body that properly and fairly weighs both interests.

1. SELF-HELP COPYRIGHT PROTECTION TECHNOLOGIES

   To date, any single self-help, anti-infringement technology can have one of three possible points of attack, each target being one step in the process of illicit copying and file transfer. (22) The three infringement subprocesses that the technologies seek to foil are 1) the uploading of store-bought CD songs onto a PC, (23) 2) the encoding of these songs into the MP3 file format, (24) and 3) the transfer of MP3 files between PCs via P2P networks. (25) Frustrating any one of these subprocesses would defeat illicit copy and transfer nearly in entirety.

   1. Compact Disc Technology

      Currently, the most widely used self-help copyright protection has come in the form of a specially protected CD. (26) There are a number of companies developing disc-embedded protection mechanisms, resulting in a wide variety of effectiveness and collateral difficulty. Generally, these protected discs will either not play in a PC, (27) prevent attempts to upload onto a PC, or in some cases, will even crash a PC. (28) There is little doubt that the albums that have been released with internal copyright protection technology have been prone to illicit copying, however. (29) Moreover, one particular album resulted in a suit against the releasing record company. (30) The litigation eventually settled, with the plaintiff getting nearly everything she requested. (31) The high degree of controversy surrounding disc-embedded protection may be attributed to its potential for wreaking havoc against fair users. (32) A major problem with this particular technology is its tendency to damage the PCs of listeners who never encode or download illicit copies of songs, and, most importantly, have purchased the music fairly. (33) Critics contend that disc-embedded protection is overbroad and severe in its method of copyright protection. (34)

      1. SunnComm and Charley Pride

         Charley Pride's "A Tribute to Jim Reeves" CD was released with MediaCloQ, (35) a disc-embedded copyright protection developed by SunnComm. When the CD was inserted into a PC's CD-ROM drive, it failed to play. Instead, a window appeared, directing the user to register the album online and download replacement files in an encrypted format. (36) This was problematic for three reasons. One, there was no indication of this requirement on the external packaging of...