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By Dr. Philip Baczewski, Associate Director of Academic Computing

Napster, the RIAA, Microsoft, and the new Intellectual Kingdom

Those wacky kids at the RIAA are in the news again. When we last visited this story, they were busily roughing up Napster in the Internet playground and threatening to take all their Internet lunch money.

They've now convinced a three-judge panel from the 9th Circuit Court of Appeals that the lunch money was theirs all along.

Actually, the 9th Circuit Court of Appeals upheld the District Court's injunction enjoining Napster "from engaging in, or facilitating others in copying, downloading, uploading, transmitting, or distributing plaintiffs' copyrighted musical compositions and sound recordings, protected by either federal or state law, without express permission of the rights owner." They did so, however, with the provision that the injunction be modified to apply when Napster "(1) receives reasonable knowledge of specific infringing files with copyrighted musical compositions and sound recordings; (2) knows or should know that such files are available on the Napster system; and (3) fails to act to prevent viral distribution of the works."

Napster is dead, long live Napster

The upshot is that while Napster is not dead, its unbridled freedom to operate their version of software and attract those Internet investment dollars is severely diminished. It is, of course, the dollars that are at stake here. Napster's ability to attract them via investment (since they don't actually sell a product) and the RIAA's ability to guard the dollars reaped by their member businesses, whose vested interest lay in restricting distribution of their product to the media outlets that they control and profit from. In other words, the bottom line is the bottom line.

The Napster.com people did make themselves an obvious target of the RIAA (like waving the bag of lunch money under the bully's nose), since their server tracked who was using their software and even what files were available. Napster-like peer-to-peer file sharing software is now abundantly available, and you don't need Napster to share "copyrighted musical compositions and sound recordings . . . without express permission of the rights owner." Making copyrighted information available using such software can easily exceed the "fair use" clause of copyright law, but it is much harder to go after millions of individual Internet users than the high-profile Napster.com.

The Battle is Joined

This is just the beginning of an ongoing struggle in the battle for "intellectual property." In case you don't know, intellectual property is creative works, ideas, inventions, symbols, etc. created by an individual for which they are, theoretically, entitled to reap a fair profit. Intellectual property is protected by copyright, trademark, and patent law in the U.S. and around the world, although there is a wide variation of law in this regard in different countries. There has always been ownership contention over intellectual property in the form of copyright infringement lawsuits. Much of the civil lawsuit activity has involved the source form of works, however, and not the distributed version. For example, two song writers may claim authorship of the same melody, and it has been left to the civil courts to decide actual ownership. There previously has not been too much question about the ownership of distribution versions of intellectual property. Copying of distribution material has generally been treated as a criminal matter, a point which you can test by selling knock-off videos or CDs on a street corner (although I don't recommend this test).

Technology has freed intellectual property from its distribution media. The digital existence of an item makes its distribution a trivial and wide-reaching process. Thanks to information technology, a CD track in its source form is not only available from the handful of record stores in a particular area, but to millions upon millions of networked computers throughout the world. As is normally the case, it will take a while for law to catch up to technology, and the intervening battles will ultimately determine who has access to and profits from intellectual property. Audio recordings are just the beginning. As storage and bandwidth technologies improve, digital video is hard on the heals of the issues in regard to audio. And these media are just the tip of the iceberg. Software algorithms, books, e-mail happy faces, "look and feel," and a long list of items which may yield profit for those who may monopolize them are already the prize of ongoing skirmishes.

Into the Fray

The rhetoric in this battle is disturbing. In her reaction to the Napster ruling, RIAA spokesperson Hillary Rosen stated, "We feel that Napster's business model is morally and legally wrong and we're very glad that the 9th Circuit Court agreed with us 100 percent." In reading the opinion, I failed to notice any reference to morality. One can only speculate on the new morality that must be sweeping a recording industry which promotes "artists" who seem to spend as much time in criminal court as they do in the recording studio.

The latest volley in the intellectual property war was prominently lobbed by Microsoft's "Windows operating-system chief," Jim Allchin. He is quoted as saying, "Open source is an intellectual-property destroyer. I can't imagine something that could be worse than this for the software business and the intellectual-property business." He further stated "I'm an American, I believe in the American Way. I worry if the government encourages open source, and I don't think we've done enough education of policy makers to understand the threat."

The core philosophy of the open source movement is that software belongs to all. You may use it, contribute to it, but not exclusively profit from it as long as it remains open source. If the "American Way," to which Allchin refers, is to guaranty profits to those big enough to monopolize the most intellectual property, then you can understand why open source would be an upsetting concept to companies like Microsoft.

The new Kingdom

So welcome to the new economic world of intellectual property. The few largest entities such as Lord Disney and Count Viacom rule their international kingdoms with the support of lesser nobles such as Duke Bill-who-would-be-king of Microsoft. Oh there are the lesser intellectual property holders such Baron Rupert and the Earl of Turner, and a whole hierarchy extending below them. There is even an intellectual property middle class -- the ones who hold a patent or have written a book and receive that infrequent and dwindling, but aptly named royalty. The rest of us? That's right, we're just virtual serfs.

NOTE: the term "virtual serf" is hereby claimed as intellectual property by Philip Baczewski. The rest of you are on your own.


Read "Free Software on Campus: Something for Nothing" in this issue for more about this topic. Previous Benchmarks Online articles on this topic include: "Doing it in the Open," and "The UNIX Question."