Napster Fallout: Privacy Loses?

If Napster is ultimately ruled to be liable for copyright infringement, the frontlines of the intellectual property battle could shift to ISPs and end users. Experts say that could be bad news for online privacy.

If Napster is ultimately ruled to be liable for copyright infringement, the frontlines of the intellectual property battle could shift to ISPs and end users. Experts say that could be bad news for online privacy.

“The next big battle is the liability that is lying on the ISP level,” said Tim Smith, president of Copyright.net, a firm that defends copyrights on file-trading networks like Napster on behalf of copyright holders.

The company has already sent thousands of notices to ISPs demanding they cut off Internet access of users who violate copyright laws.

The ISPs have ignored the notices so far, saying they are not responsible for enforcing copyright law on “transient” files passing over their networks.

The Digital Millennium Copyright Act (DMCA) already exempts ISPs from any obligation to monitor their networks for copyright violations, and absolves them of liability for transient files.

Nevertheless, privacy and legal experts predict that the Napster decision will place increased pressure on ISPs to play a role in stopping illegal file sharing. At the least, they may face a new deluge of requests to identify users accused of copyright violation.

At most, some say this may be the first step toward ISPs being forced to police all the content flowing over their servers for copyright violation.

How the differing interpretations of ISPs’ responsibilities under the DMCA are resolved will have a dramatic impact on the level of privacy end users can expect on the Internet.

Michael Overly, an online privacy attorney with Foley & Lardner in Los Angeles, predicts the Napster ruling will force other centralized peer-to-peer file-sharing networks to the relative safety of offshore servers, leaving the record companies no recourse but to go after end users via their ISPs.

“The next thing is they’ll move offshore, and the record companies will have to go after individual users — make an example of some people,” Overly said. “And if they start looking to individual users, it will require turning over individual information.”

ISPs are already dealing with a deluge of subpoenas requesting the identity of Internet users named in lawsuits. AOL recently revealed it processed over 400 requests last year. Copyright enforcement could lead to even more identity disclosure subpoenas, Overly said.

Privacy advocate Jason Catlett, president of Junkbusters, expressed similar concerns.

“Napster has to date carefully designed its privacy policy to avoid identifying users, but this could soon change,” Catlett wrote via e-mail. “As the recording companies bring Napster under their influence by litigation and deal making, they will likely seek to personally identify users in order to extract payments, market, and deter infringement. It may cause quite a storm.”

Besides moving offshore, decentralized networks is another option peer-to-peer networks are considering. With no central hub to prosecute, these type of networks could turn industry pressure to ISPs and end users as well, Smith said.

“The gray areas are going to lead to discussion about policy between ISPs and those interested in copyright protection,” Smith said.

So far, his company’s efforts to convince ISPs to implement an automated notification system that warns end users to stop trading copyright-protected files or lose their Internet access have failed. “But now some more powerful organizations are interested” in pushing the ISPs to use such a system, Smith said.

Privacy concerns have already led to such Napster alternatives as Aimster, a service that actually uses the DMCA regulations to protect peer-to-peer files from being monitored by those outside the network, such as parties looking for copyright infringement.

“Consumers have rights too,” Aimster CEO Johnny Deep said, calling the implications of the Napster decision a “huge privacy issue.”

The company has just come out with a product called the Pigencoder that translates Napster files into pig Latin, which is all it takes to trick the file monitor and filter.

Some say the Napster decision could be an ominous first step toward increased monitoring of the Internet in general. Dierdre Mulligan, a privacy expert at the University of California at Berkeley’s Boalt Law School, warned that law enforcement should always be balanced with a sensitivity toward privacy concerns. “Copyright protection efforts need to make sure we don’t end up with a fully monitored world, and there is a threat of that.”

Chris Hunter, a privacy expert at the University of Pennsylvania’s Annenberg Public Policy center, shares Mulligan’s concern. “The Napster decision is the first step toward tracked copyright management systems,” he said. Hunter worries the balance in the copyright vs. fair use battle is tipping toward industry interests.

Of course, all of these scenarios are contingent upon the fact that after all appeals are exhausted, Napster will be found to have been liable for infringement of copyright after all.

Overly, for one, still isn’t convinced they’ve done anything wrong. “If you read the DMCA, it’s not clear to me that Napster is liable,” Overly said. “And the same argument could be made for an ISP.”

Author: Jeffrey Benner

News Service: Wired News

URL: http://www.wired.com/news/politics/0,1283,42203,00.html