Art vs. the technology that won't die

Yale finds itself in the center of the battle between the music industry and the future.

SHAWN CHENG/YH

Dan Folkinshteyn, JE '02, has never used Napster. So when the University banned access to the famed MP3-swapping network on Fri., Apr. 14, it was business as usual for Folkinshteyn, who uses "old-fashioned" FTP sites to do his file-sharing. FTP, or File Transfer Protocol, is a simple way to transfer files between computers; an MP3 is a compressed digital form of an audio recording that can be transferred between and played back on computers. "The Napster ban has no effect if you know what you're doing," he said. And Folkinshteyn, like many other computer-literate students, certainly knows what he's doing. "I was probably using as much bandwidth as the rest of the college combined," Folkin-shteyn said of his own short-lived MP3 server, an operation he ran for a few weeks last fall from his dorm room before Yale told him to shut it down. Folkinshteyn was quick to oblige. "After the warning shot comes the shot for the kill," he explained. "And I'm not waiting for that."

Strike one

Both Napster and Yale have been trying to dodge such warning shots for the last several months, as first the Recording Industry Association of America (RIAA) and then the heavy metal band Metallica filed suit against Napster, comparing the service to "a giant online pirate baz-aar." Napster will appear in court on Mon., Oct. 2 to fight against this claim after a preliminary injunction on Wed., Jul. 26 threatened to shut them down. A reprieve two days later allowed Napster to keep operating, but the odds seem to be stacked against its eventual survival. MP3.com, which allowed users to listen to their own CDs off of an online database, just lost a legal battle to the tune of $120 million on Wed., Sept. 6. And although several technology companies have expressed sympathy for Napster, the U.S. Copyright Office and the U.S. Patent and Trademark Office filed briefs lending their support to the RIAA.

The Napster controversy first entangled Yale last spring, as Information Technology Services (ITS) officials grappled with the overwhelming network traffic Napster users produced. In response to this problem, ITS announced on Thurs., Mar. 23 that it would block Napster use from 10 a.m. to 5 p.m. on weekdays in an attempt to free up precious network space. Joe Paolillo, director of Data Network Operations, said at the time, "From our perspective, it seems to solve the problem...but the measures are not draconian." [YH 3/24/00]

Such an emphasis on non-draconian measures faded quickly, however—on Thurs., Apr. 13, news broke that the University had a lawsuit on its hands. Metallica, alleging complicity on the part of universities, named Indiana University, the University of Southern California (USC) and Yale as codefendants in their complaint against Napster. Yale responded quickly with an e-mail to students shifting its position and explaining its intention to ban access to Napster from the Yale network indefinitely in the name of a commitment to "protecting intellectual property." Metallica reciprocated by dropping Yale from its suit. Despite a few recent reports that some returning students were able to access Napster from their rooms this fall, University Director of ITS Daniel Updegrove confirmed that the Napster ban is here to stay. "Napster has not been reinstated," he told the Herald on Sun., Sept. 10. And that status is not likely to change any time soon. "Until we can clarify the legal issues surrounding Napster, access to napster.com will not be available from the Yale network," Updegrove wrote in his e-mail to students in April.

Exploring new legal frontiers

If clarification is what Yale needs before it would consider reinstating Napster access, however, then the University may be celebrating its 400th birthday by the time the service reappears. The battle over Napster has lawyers, musicians, and computer scientists scrambling to define the legal and ethical limits of the Internet, and no one seems to know what direction the final answer will take. While Robert Dunne, assistant adjunct professor of computer science and director of Yale's Center for Internet Studies, called Napster's legal position "not very good," opinions differ on just what the company's responsibility is. "It's copyright infringement. It's illegal," Faye Chao, CC '01, a Computing Assistant, said. Updegrove expressed reluctance to attack Napster wholesale, saying, "None of [the] `Napster' entities, in my view, are inherently illegal."

STEPHEN J. BOITANO/NEWSMAKERS Metallica drummer Lars Ulrich has alienated many of his fans with his crusade against Napster.

Ernest Miller, Resident Fellow for the Information Society Project at Yale Law School, tried to define the complex situation. "If I want to put my music files that I own on a webpage so that I can listen to them, I should be able to do that. Is there a requirement that I then make access to those files secure so that only I can listen to them? Not necessarily," he said. Miller compared this benign use of MP3s—often referred to as format-shifting—to the time-shifting involved in copying a television program onto a tape for later viewing. Videotape time-shifting was declared exempt from copyright responsibility in the 1984 Supreme Court case, Sony Corp. v. Universal Studios. "Napster just makes it easy," Miller said.

It is this remarkable ease that initially won over Indiana University. Mark Bruhn, Information Technology Policy Officer for Indiana University, has always believed that Napster is not necessarily responsible for those instances that cross the hazy copyright line. "I don't think Napster should be illegal, as long as the application can be used legally. A screwdriver isn't illegal either, but it's illegal to use a screwdriver to steal a car," he said. In fact, so impressed was Indiana with the Napster screwdriver that, after initially banning it due to excessive network traffic, the university began working with Napster developers in an attempt to create a less bulky file-sharing system. "We decided that [Napster] was clever enough that we might very well have to support a similar application in the future," Bruhn said. These efforts became moot, however, as soon as Metallica lawyer Howard King stepped into the ring. Indiana followed Yale's lead and blocked Napster once again.

USC followed on Fri., Apr. 21 with a statement that students would be able to access Napster only for "demonstrably legal purposes under University supervision." Carol Mauch, USC Counsel, seemed to agree with Bruhn's tool analogy, though. "Just as some students may make uses of information found in books in the university library that would not be endorsed by the university, so too may they make choices of sites to visit and images and other content to download that USC would not approve," she said.

Napster also claims a lack of control in its own legal defense. "Napster does not, and cannot, control what content is available to you using the Napster browser," Napster executives wrote in their current copyright policy. The company claims protection under the 1998 Digital Millenium Copyright Act (DMCA)—which provides protection to Internet Service Providers (ISPs)—and under the "fair use" clause of federal copyright law.

Many experts view these defenses skeptically. The DMCA states that it only provides protection for a service provider if "it does not have actual knowledge of the infringement [or] is not aware of facts or circumstances from which infringing activity is apparent." Yet Miller acknowledged that Napster might find some protection under "fair use"—a disclaimer that protects such non-profit activi-ties as tape-dubbing and photocopying copyrighted material for educational purposes. Napster is not yet gaining a profit from its supposed piracy. "Napster may have a financial drive, but it has yet to make one penny," Miller said.

Taking the easy way out

JUSTIN SULLIVAN/LIAISON Napster lawyer David Boies faces an uphill battle against the RIAA.

One source, who asked not to be named and claims to have been in close contact with at least one Yale official involved in the talks over Napster, said that Yale knew that Metallica hadn't taken action against any individual people, and that it didn't plan to do so. "It's a logical impossibility. [Metallica] doesn't have enough money to go after three million different users," the source said. "Yale decided that the perfect way to bail out and not look like the bad guy was to say that it was pulling [Napster] because it was protecting the student. Especially after Lasaga and all the other scandals, Yale didn't want any more bad press." Still, it is not clear that bad press is all that could have been awaiting the University had it failed to satisfy Metallica. While Miller dismissed the case against Yale as a "a mere publicity play," Zittrain did not find the situation so cut and dry. "I think it's ambiguous," he said of Yale's legal liability.

Falling into line

"Harvard has never restricted access to web sites through its computer networks," Harvard Public Information Officer Doug Gavel said. Nevertheless, "the administration is considering the request," Gavel added. Zittrain noted that Harvard and other universities are generally reluctant to interfere with students' freedoms. "It's not that a university doesn't care about copyright infringement, but it doesn't want to become an information police force," Zittrain said.

So is there a way to selectively police information without banning sites like Napster outright? Zittrain thinks there is. "I think there are ways to design a network so that it just lets certain things through," he said. Updegrove agreed. He has not eliminated the possibility that Napster could return to Yale in a different form. "If it were possible to permit access to [some] music while blocking music by artists opposed to such free exchange, I could envision changing our approach," he said. But most students don't think this is plausible. "Not many people download anything besides copyrighted music," Chao said.

Napster's nine lives

Four ways to avoid Yale's Napster ban

1. Though Yale has blocked access to napster.com, proxies allow indirect access (www.david.weekly.org/ code/napster-proxy.php3). 2. Napster's network stores lists of users and files. For blocked users, an alternative network has sprung up (see mynapster.com, napigator.com, freenet.sourceforge.net) are also options. 3. Central networks can be bypassed through personal netweorks of friends (aimster.com. 4. Another alternative to central servers is passing searches from user to user (gnutella.wego.com).

This is precisely what the music business is afraid of, and it is at the heart of their case, which charges that the sharing and downloading of MP3s will irrevocably harm the music industry by reducing revenues. The RIAA has commissioned studies that show that Napster users—especially college students—do buy fewer CDs. Yet Napster has vigorously protested this point, citing conflicting studies that show that CD sales have actually risen. The truth may lie somewhere in between. "If people check out a few Metallica cuts, they might decide to buy the CD. Where there are negatives, there are positives," Phil Cutler, owner of Cutler's Records, said. Still, one negative may be that faster Internet connections like cable modems and Digital Subscriber Lines (DSL) are extending the ease of piracy beyond college walls. One high school student admitted, "I have a cable Internet connection at home... Most of my friends and I don't purchase CDs."

If digital media continues to spin out of control, then record companies may not be able to win music back. "The real question is how are copyright law and copyright owners going to adapt to this new world?" Dunne said. Zittrain agreed that adaptation is the key. "The industry knows [that] in the end, it's a losing battle...If I were the Law, I would seek to bring the parties to the table right now and reach accommodation," he said.

Indeed, no matter what the outcome of Napster's upcoming court appearance, and no matter how many MP3 sites Yale may ban, it is hard to imagine a future in which digital media will not play a starring role. "The movie folks lost in the Supreme Court [concerning VCRs] way back in 1984, and, guess what, the industry didn't die after all," Dunne said. "They figured out a way to make money playing by the new rules and things are better than ever for them today."

What is uncertain is what the terms of those new rules will be. Hrishikesh Hirway, MC '00, whose unsigned band, the one a.m. radio, received a considerable publicity boost courtesy of MP3 trading, compared the record companies' task to the problem of "how to fight back against automatic weapons." He said that they will have to work with, instead of against, technology. Courtney Love, lead singer for the band Hole, sees the technology as an opportunity to eliminate record companies altogether. But if history teaches us anything, it's that when there's money on the line, everyone wants a piece of the action—which means that record labels are more likely to spread than they are to evaporate. "There will be a ton more labels and products to choose from," Edan Cohen, a Philadelphia producer who records local artists, predicted. "It will be hard to choose and very overwhelming, but it will be—for better or worse—closer to a democratic and `free' market than we have yet to experience."

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