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When it's not nice to share

From Napster to Kazaa and beyond, legally speaking

Not so very long ago, intellectual property (IP) law was a sleepy, genteel legal backwater, having mostly to do with book publishing and the prerogatives of gentlemen and ladies of letters. No more: As BC Law School Dean John Garvey said in remarks that opened the school’s symposium “Intellectual Property, E-Commerce, and the Internet” on October 18, developments in the discipline are “moving too fast” for more than a few lawyers to keep abreast. With digital technologies multiplying, lawsuits have proliferated (think of Napster, the music-sharing Web site sued out of existence by the recording industry and just as quickly replaced by Kazaa and Limewire). So also have unsettled questions of law.

Several dozen law professors and a handful of practicing IP lawyers attended the BC symposium, coming from places as far flung as Los Angeles, Austin, and Oklahoma City. It was the gathering of a special tribe, casually dressed (you could count the neckties in the room on the fingers of one hand) and speaking a jazzy dialect that mixed cybertalk with medieval-sounding legalisms (“trespass to chattels,” “champerty laws”) and abundant pop culture references. (Names from Brandi Chastain to Vanna White, Barry Bonds to James Bond, Superman to Guy Lombardo were raised to illuminate this or that point.) The average age in the room was somewhere in the mid-to-upper thirties, and some dauntingly learned presentations came from scholars who may not have been out of their twenties—a fact explained by IP’s recent growth, according to BC law professor Joseph Liu, who, along with his colleague Alfred Yen, organized the conference.

As papers were delivered, an odd-gaited dialogue developed between the presenters—professors all—and the practicing lawyers who were in attendance. On the whole, the presenters spoke high-mindedly and cautiously, reluctant to call for drastic measures in such a new and fast-changing discipline as Lex Internet. The expression “wait and see” proved popular, and more than one professor was heard to sheepishly describe his or her presentation as “tentative,” “speculative,” or even “tepid.”

The practitioners, by contrast, spoke bluntly and pragmatically. They called for action by lawmakers and by the courts—action, they readily admitted, that would benefit their clients and, by extension, themselves.

A couple of examples: In the symposium’s first paper, the University of Pittsburgh’s Michael Madison discussed the varied legal bases for Internet-related litigation. In particular, Madison lamented the lack of “resonance” in so-called click-through agreements, in which a mouse click serves as an e-signature, signaling assent to an on-screen contract. At the same time, he said, two recent federal statutes and numerous tort cases have invoked the common-law notion of trespass to keep unwanted visitors—including business competitors—from downloading data from a Web site. The metaphor here is imprecise, he said, for if we experience the Web as a place, it’s a place without boundaries, where the concept of trespass can have no meaning—at least until more visible fences go up.

To which David Perla, chief counsel of Monster.com, the employment Web site, offered a brief, pointed reply: He and his employer just wished the courts would settle on a single source of law for Internet transactions instead of the confusing status quo, in which lawyers must be versed in IP, torts, and contracts, as well as the recent Internet statutes. “We’ll take anything,” said Perla, “over what we have now.”

In his own paper, Liu critiqued IP law for the overly passive picture it draws of the copyright consumer—that is, the audience for creative works. Liu identified several active consumer interests, among them sharing and creative self-expression, that have come to the fore in the digital world but are largely ignored in current law. The Internet, Liu pointed out, increases our ability to share works with others far beyond what was possible with books and vinyl phonograph records. Of course, much Web-based sharing—think again of Napster—has been deemed impermissible by the courts. As for creative self-expression, Liu used the term to describe the practice, also of dubious legality, of lifting copyrighted files into homemade media such as personal Web sites and party-mix CDs. The market may come to accommodate such active consumption on its own, Liu said, but he rather doubts it, and he proposed that Congress and the courts become more attuned to the copyright consumer.

Responding to Liu’s paper, Mitch Singer, in-house counsel at Sony Pictures, took a radically different view. Singer, who admitted he was “openly hostile to people on the other side of the question,” said, “In the name of protecting little Susie’s right to create a multimedia book report, they vitiate the whole system of copyright protection.” He then pointed to the history of file-sharing Web sites, saying, in a tone of disbelief, that as recently as 1999, “we were actually debating whether Napster encouraged CD purchases.” But, he said, CD sales declined 5 percent in 2000 and 10 percent in 2001, and a 15 percent drop is estimated for 2002.

“As a producer of motion pictures,” Singer said, “I have to assume my industry isn’t far behind.” He predicted that one of two outcomes would result from free access to movies via the Web: either a rise in the cost of movie tickets or a decline in the quality of the movies themselves.

Other papers at the symposium, which will be published in Boston College Law Review this spring, treated subjects as varied as how to discourage frivolous lawsuits involving intellectual property claims, how best to purge the Web of child pornography and other objectionable material, and whether Internet law is something new or just a translation of old legal concepts to a slightly different realm. Napster, the object of Singer’s ire, raised its head in several of the papers presented, as well as in the discussions that followed, and few participants, lawyers or professors, had much good to say about the defunct Web site.

But on the sidelines, during lunch the first day of the symposium, one IP practitioner supplied an alternate, and very real-world, perspective. “I’m a copyright lawyer,” he was heard to say, “but my kids are making an industry of infringing copyrights, copying CDs off the Internet and giving them out to all their friends.”

David Reich

David Reich is a writer based in the Boston area.

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