Vol 7 No 1 - Roger Williams University School of Law

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circumventing a TPM in order to look at a program to identify andanalyse those elements necessary to achieve interoperability inthe name of reverse engineering, but only to the extent permittedby copyright law, most commonly where a right to reverseengineer under the fair use doctrine is available.298 Thus, thevalue of interoperability and digital diversity was seen inReimerdes as being of less importance than the copyright ownersexclusive right to reproduction or to control access. This was ahard case and this type of fact scenario needs much more thought.However, to prevent the porting of informational products todifferent platforms stifles diversity and allows one entity tocontrol the structure or architecture for disseminating informationand constructing meaning. Is this acceptable? Obviously a verybroad right to reverse engineer given as an exception to copyright(or circumvention?) law reduces the incentive for developingsoftware or content. However, this must be balanced against theneed for interoperability and digital diversity in softwarearchitecture.2993. Fair Use: NapsterFair use was also unsuccessfully argued in the recent Napsterdecision, although many would argue that this is a case in whichthe social benefits of the user outweigh the economic arguments ofcopyright protection.300There have been a number of decisions concerning what isknown as “mp3.” Mp3 is a format/software that allows digitizedmusic to be compressed and digitally distributed without losingsound quality.301 The recording industry throughout the world298. See, e.g., RealNetworks, Inc. v. Streambox, Inc., 2000 WL 127311 (W.D. Wash.2000); Sony Computer Entm’t of Am., Inc. v. Gamemasters, 87 F. Supp. 2d 976 (N.D.Cal. 1999).299. See Lessig, supra note 42.300. See Fred von Lohmann, Peer-to-Peer File Sharing and Copyright Law AfterNapster, Cal. Law., Jan. 2001, at 42, available athttp://www.eff.org/IP/P2P/Napster/20010309_p2p_exec_sum.html (last visited Nov. 17,2001).301. See Recording Indus. Ass’n of Am. v. Diamond Multimedia Sys., Inc., 180 F.3d1072, 1073-74 (9th Cir. 1999).Until recently, the Internet was of little use for the distribution of musicbecause the average music computer file was simply too big: the digitalinformation on a single compact disc of music required hundreds of computerfloppy discs to store, and downloading even a single song from the Internettook hours. However, various compression algorithms (which make an audio
has been greatly concerned with the proliferation of mp3formatted music files as this has (they say) the potential toundermine the whole system of copyright in popular music. Thetechnology is such that a song can be “ripped” off a CD, uploadedto the Internet for copying, distribution, consumption andpotentially downloading or “burning” onto a compact disc.In many instances, the act of copying is obvious and arguablya breach of copyright. However, lawsuits so far have not beenagainst the end consumer for direct copyright infringement butagainst the machine or technology manufacturers or developersfor indirectly breaching copyright through facilitatinginfringement. Napster involved suits by the recording industryagainst the company that developed and distributed software thatenabled people to reference and access mp3 files available via theInternet. A “live” index created and centrally stored at Napsterallowed online users to share mp3 files/songs. For instance, if Iwant to listen to a song called “Red River,” I would use myNapster software to access a list of people currently online fromthe Napster central server who are registered as having a copy ofthe song; then, I would request the file directly from the personwho has it stored on their hard drive. The file is not sent to me byNapster, but by the party who is registered as having a copy. Thisis sometimes referred to as peer-to-peer file sharing.302 Theimportant point is that Napster merely facilitates the delivery ofthe copied song, it does not do any copying itself. Should they beliable for copyright infringement? Does the digital property of thecopyright owner control this situation?In 1984, the United States Supreme Court, analogizing thefile “smaller” by limiting the audio bandwidth) now allow digital audio files tobe transferred more quickly and stored more efficiently. MPEG-1 AudioLayer 3 (commonly known as “MP3”) is the most popular digital audiocompression algorithm in use on the Internet, and the compression itprovides makes an audio file “smaller “ by a factor of twelve to one withoutsignificantly reducing sound quality. MP3’s popularity is due in large part tothe fact that it is a standard, non-proprietary compression algorithm freelyavailable for use by anyone, unlike various proprietary (and copyright-secure)competitor algorithms. Coupled with the use of cable modems, compressionalgorithms like MP3 may soon allow an hour of music to be downloaded fromthe Internet to a personal computer in just a few minutes.Id.302. See Andrew Oram, Peer to Peer: Harnessing the Power of DisruptiveTechnologies (2001).
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ROGER WILLIAMS UNIVERSITYLAW REVIEW
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ROGER WILLIAMS UNIVERSITYSCHOOL OF
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Identification StatementThe Roger W
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contract exclusion or disclaimer of
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and other laws of countries in whic
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Symposium and writes on this issue
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Indeed, the quotation contains the
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suggestive of a bill designed merel
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United States ought to adopt in lig
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the Supreme Court to reiterate in F
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United States Supreme Court quoted
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copying of “a work protected unde
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shall be null and void.65 Member st
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determining the fate of database pr
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The compilation of a database requi
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management information, including c
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one congressional witness noted:
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that were made after the initial te
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preferred language of many business
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the sui generis right mainly serves
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the Paris Convention for the Protec
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directly or indirectly.159 In other
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of resources that qualifies that po
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wish to encourage private lawsuits,
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contract.”185 While section 1405(
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The Directive will inevitably drive
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the process through which digital p
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the United States or the trade and
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patent law is the utilitarian ethic
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a work to be publicly identified as
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the United States, the power of the
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Theory one proposes to reward the a
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of intellectual property rights mus
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only such as are original, and are
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emedies set forth in section 1406.T
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eproduced, though there be no ingen
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the same, or substantially the same
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with respect to “patents of inven
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Because, in part of the joint reaso
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even by the plaintiffs today.86The
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statute: the “Limited Times” re
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Page 102 and 103: gave incentive for people to expres
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Page 110 and 111: that a monopolist should not seek t
Page 112 and 113: motivating force.While antitrust or
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Page 116 and 117: his refusal to sell or license his
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Page 120 and 121: the information age there have been
Page 122 and 123: In response to Intel’s argument t
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Page 134 and 135: for circumventing a technological p
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Page 140 and 141: “staple article of commerce” do
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Page 150 and 151: information rights and legislated c
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Page 158 and 159: implemented. As this section will h
Page 160 and 161: ight. First sale is an important di
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Page 178 and 179: Universal Music Group uses software
Page 180 and 181: Taking UCITA on the Road: WhatLesso
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Page 184 and 185: It is against this background that
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as well, such as the American Bar A
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American Law Institute refused to p
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enactment of the draft. This led to
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such application.35 To the extent,
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transactions involving goods other
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quite controversial.49 As the histo
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provisions of Article 2 (based in p
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form license of information.63 Alth
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principles articulated in several i
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to by industry groups, with the res
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powers going well beyond the UNIDRO
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Contracts deals with unfair terms i
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worth a thousand words. Picture a d
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types of provisions being sought by
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law is a complex one.125 Although s
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the intellectual property balance o
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Other Substantive IssuesThere are,
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law,153 and many of UCITA’s provi
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nature of law-making both domestica
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Transactions Act).
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acts of copyright infringement.7 Un
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these rights.I. ISP LIABILITY FOR T
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Cubby, the court in Stratton Oakmon
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liability for third-party content.5
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network and removed the edition of
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subscribers’ conversations.84 Fur
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holder.92 Contributory liability ap
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and Klemesrud on the counts of dire
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eport, the White Paper on Intellect
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imposed ISP liability both in insta
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any infringing material either upon
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provider liability, the European Co
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of a defamatory statement.While saf
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defamation.184 One case that illust
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material that appears questionable
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FBI’s Carnivore: Is the Governmen
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and the legal limits of government
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II. CONSTITUTIONAL ANALYSISA. Const
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application developed in Katz v. Un
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Amendment protections.50Substantial
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communicating over the Internet pos
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court will likely, as it has often
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unconstitutional.81 Although CALEA
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data attributable to the target sus
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FBI facility for subsequent examina
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EPCA Section 2518 provides that upo
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The FBI has stated that its use of
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provision,143 but judging from the
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