New Jersey Law Journal,
July 23, 2001
Copyright 2001 American Lawyer Newspapers Group, Inc.
New Jersey Law Journal
July 23, 2001
LENGTH: 960 words
HEADLINE: Intellectual Property From MP3.com to Napster: Navigating
the Safe Harbor
BYLINE: JONATHAN BICK (www.BickLaw.com)
THE AUTHOR IS AN ADJUNCT PROFESSOR OF INTERNET LAW AT PACE LAW SCHOOL
AND RUTGERS LAW SCHOOL. HE IS ALSO THE AUTHOR OF 101 THINGS YOU NEED
TO KNOW ABOUT INTERNET LAW (RANDOM HOUSE 2000).
*Congress has the chore of adapting copyright laws so they remain effective
as technological advances change the face of commerce.
*This undertaking involves an intricate balance between the interests
of authors to control and exploit their work product and society's competing
interest in the free flow of ideas, information and commerce.
*As authors' and society's interests have changed over time, the copyright
statutes have been amended over and over again. Congress has successfully
adopted copyright laws for nearly 100 years, effectively responding
to such major innovations as radio, television and video.
*Most recently, the Internet content, music and film industries have
initiated litigation in order to secure copyright protection in the
Internet environment. In particular, the digitization of copyrighted
content, music and movies, along with the wide use of the Internet and
the popularity of Internet file sharing, have resulted in significant
litigation. The ease with which Internet users can copy and download
digital files has resulted in both the Motion Picture Association of
America and the Recording Industry Association of America losing the
potential to earn significant amounts money from Internet users.
*In addition, Internet site operators and Internet service providers
that facilitate the distribution of Internet content, music and films
found themselves in the gray areas of copyright law when a court ruled
against MP3. com. See UMG Recordings, Inc. v. MP3.Com, 92 F. Supp. 2d
349 (S.D. N.Y. 2000). This ruling had the effect of stifling Internet
site and service provider activity due to the potential of copyright
*The Digital Millenium Copyright Act was enacted to ensure that copyrighted
content would continue to be protected by copyright law in the digital
environment, while simultaneously allowing the flexibility necessary
for Internet technologies and businesses to flourish by making copyright
*The DMCA was tested by both the MPAA and the RIAA. The MPAA challenged
the unauthorized copying and distribution of copyrighted movies on digital
versatile disks over the Internet. The RIAA contested the unauthorized
downloading of compressed music files known as MP3s.
*In both instances, the potential piracy troubles result from the digital
nature of the intellectual property and the fact that digital content
can be copied and shared so easily. In fact, CDs and MP3 files do not
contain encryption technology to protect against the unauthorized copying
of music content and the encryption that is used by DVDs did not provide
*The MPAA was successful in Universal City Studios, Inc. v. Reimerdes,
111 F. Supp. 2d 294 (S.D.N.Y. 2000), in which the court enjoined a hacker
Web site from the posting and linking of computer code used to descramble
DVD encryption technology protection.
*To date, the RIAA has not been as successful as the MPAA. The RIAA
filed a suit in the U.S. District Court for Northern California against
Napster, Inc., an Internet firm that facilitates peer-to-peer file sharing,
enabling its users to download MP3 files at no cost.
*The RIAA members alleged that Napster was liable for contributory copyright
infringement and vicariously liable for the direct copyright infringement
of its users. Napster filed a motion for summary adjudication under
17 U.S.C. ' 512(a), the safe-harbor provision of the DMCA. Napster argued
that the plaintiffs were not entitled to monetary damages or injunctive
relief except for narrow injunctions against individual copyright infringers.
*The RIAA argued that '512(a) did not apply since the purportedly infringing
material did not go "through" the Napster servers, but was
transmitted directly between users' machines. The RIAA also argued that
each section of the DMCA must be analyzed independently and that the
more narrow subsection 516(d), which refers to information location
tools such as search engines, is more applicable to Napster.
*The court ultimately agreed with the RIAA, rejecting Napster's safe-harbor
argument and ruled that Napster failed to rein in copyright infringement
in accordance with '512(i). The court found on May 12, 2000, that Napster
did not meet the requirements of the DMCA. See A & M Recordings,
Inc. v. Napster, Inc., 2000 WL 573136 (N.D. Cal. May 12, 2000).
*On July 26, 2000, the District Court granted RIAA's motion for a preliminarily
injunction against Napster "engaging in or assisting others in
copying, downloading, uploading, transmitting, or distributing copyrighted
music without the express permission of the rights owner" and ordered
Napster to comply by July 28, 2000. See A & M Recordings, Inc. v.
Napster, Inc., 114 F. Supp. 2d 896 (N.D. Cal. 2000).
*The Ninth Circuit Court of Appeals on July 28, 2000, stayed the lower
court's injunction that would have shut down Napster. See Nos. 00-16401/16403,
2001 WL 1055915 (9th Cir. Feb. 12, 2001).
*A & M Records, Inc. v. Napster, Inc., is still in progress. See
No. 16401, 2001 WL 115033 (9th Cir. Feb 12, 2001). Currently, Napster
is permitted to stay in business until such time that the Ninth Circuit
agrees with the District Court that the RIAA presented a prima facie
case that Napster users committed direct copyright infringement. It
must be noted that Napster may ultimately be held liable for contributory
and vicarious copyright infringement.
LOAD-DATE: July 23, 2001