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RIAA v. Online File Swapping (last updated September 22, 2003) (back to top) Trying to stop the widespread practice of downloading copyrighted music without paying for it, the music recording industry, led by the Recording Industry Association of America (RIAA), has taken several approaches. The most recent - and perhaps most controversial - approach has been to sue individual users who have downloaded more than 1,000 songs for copyright infringement, which RIAA members began doing on September 8, 2003. The RIAA has defended this action as a necessary move to increase public awareness that file-swapping copyrighted music through services such as Napster or Kazaa is illegal and could result in drastic consequences. At the same time, the RIAA has also announced that the industry would grant de facto "amnesty" to those users who identify themselves and pledge to stop sharing music on the Internet.
 On-line Content Regulation (last updated May 14, 2002) (back to top) Since the mid-1990s, the federal government has struggled to find a way of regulating content on the Internet. A statute criminalizing the communication of certain kinds of material on-line was struck down as unconstitutional by the United States Supreme Court in 1996, and the federal government has been barred from enforcing a subsequent law since early 1999. On May 13, 2002, the United States Supreme Court ensured a continued limbo for the 1998 law, known as the Child Online Protection Act, by sending the matter back to the Third Circuit Court of Appeals for further deliberations. The COPA was first declared unconstitutional on several grounds by a federal district court in Philadelphia in early 1999, and this decision was upheld on only one ground by the Third Circuit in June 2000. The Supreme Court reversed that basis for the Third Circuit's decision in May 2002 but declined to address other grounds by which the COPA might be unconstitutional. While recent efforts have focused on criminal statutes that threaten people who distribute certain material on-line, there are other ways of regulating such content, many of which are already in practice today to varying degrees. The Commission on Child Online Protection, which was created by the COPA but was funded privately, studied such methods and released a report in October 2000. Methods studied by the commission include:
On-line Privacy (last updated April 30, 2002) (back to top) Electronic-commerce practices such as the use of "cookies" without consumers' knowledge have raised privacy concerns with legislators and regulators, who have urged industry self-regulation but are also considering legislation as well. In July 2000, the Federal Trade Commission recommended that Congress enact some basic legislation to regulate the on-line advertising industry's practice of "on-line profiling," noting that the industry's self-regulation efforts were commendable but insufficient. The leading on-line advertising companies formed an organization (the Network Advertising Initiative) in November 1999 to develop a framework for self-regulation, and the resulting NAI principles emphasize providing notice to consumers about advertisers' profiling activities and giving consumers the ability to not participate. "Nonetheless, backstop legislation addressing online profiling is still required to fully ensure that consumers' privacy is protected online. For while NAI's current membership constitutes over 90 percent of the network advertising industry in terms of revenue and ads served, only legislation can compel the remaining 10 percent of the industry to comply," the FCC said in its 2000 report. Some bills regulating on-line profiling are now moving slowly through Congress but may have a difficult time being enacted. For one thing, the FTC's own position may be changing. In October 2001, new FTC chairman Timothy J. Muris noted that it was "too soon to conclude that we can fashion workable legislation" regulating on-line privacy. Muris noted that legislating broad-based privacy concerns is difficult, that it was unclear why regulation should be limited to on-line profiling and not off-line profiling as well, and that the slowing of Internet growth emphasized the need to understand the costs of regulation. The Internet advertising industry grew considerably from 1996 to 2000 but slowed somewhat in 2001. According to the Internet Advertising Bureau, revenues went from $267 million in 1996 to $8.225 billion in 2000 (an increase of 30 times). Revenues declined in the first three quarters of 2001, reflecting the weaker economy. On-line profiling refers to industry practices to gather data on the consumers who view their ads, primarily through the use of "cookies" which track a user's actions on the Internet. The information is usually linked to the identification number of the advertising network's cookie on the consumer's computer rather than the a specific name and is thus often anonymous, but the information can be identified with a particular person either by the consumer providing that information or by the web site retrieving such information from the consumer's computer. A FTC survey in 2000 found that of the top 100 sites, 78 percent allowed advertisers to place cookies ontheir sites, but only 61 percent of those sites disclosed that fact. As for a random sample of busy sites, 57 percent allowed advertisers to place cookies on their sites, but only 22 percent of those sites mentioned such cookies or data collection practices by advertisers in their privacy policies. While most on-line privacy concerns are related to advertising industry practices, there have been some concerning hardware. In January 1999, Intel announced that its Pentium III chip would include a processor serial number which would be electronically implemented rather than placed on the chip's exterior; the chip would allow businesses or certain software to track those computers. The PSN was widely unpopular, and several computer manufacturers took steps to disable or limit the chip. Intel resisted some privacy advocates' demands to recall the chip, but has not used the PSN in subsequent models. Sources: The FTC's July 2000 report to Congress on on-line privacy is on-line here. FTC Chairman Timothy J. Muris's October 4, 2001 speech on privacy is on-line here. The Internet Advertising Bureau, online here, tracks the industry in reports available on the site. Information on Intel's Processor Serial Number is available from Intel here and here; the privacy advocacy organization Junkbusters was one of the most vocal critics of the PSN and has some information on-line here. Internet Access (last updated April 3, 2002) (back to top) Computer and Internet use by Americans have grown substantially in the past few years, with computer use increasing overall at 5.3 percent per year since 1997 and Internet use overall by about 20 percent since 1998, according to a report based on census data. By September 2001, more than half the American population and more than half of all households were using the Internet from some location, and this increase was seen in all groups. That still leaves a large but shrinking segment of the population that was "unconnected," people who are generally of lower income, have low levels of overall education, and are of certain minority groups. There were about 122.4 million "unconnected" Americans as of September 2001, about 46.1 percent of the total population, down from 198.9 million in October 1997. While about 60 percent of white and Asian-American people used the Internet as of September 2001, only 40 percent of blacks and 32 percent of Hispanics did, though all groups have shown increased use since 1997. Internet use also varies by education and family income level. The following charts show how Internet use from any location has increased by race, income, and educational attainment. As for other common classifications, Internet use is about the same between men and women (53.9 and 53.8 percent, respectively, in September 2001), and between urban and rural households (54.2 and 52.9 percent, respectively, in September 2001).    Copyright Term Extension Act (last updated January 17, 2003) (back to top) If not for the Copyright Term Extension Act of 1998, Mickey Mouse would have entered the public domain in 2003. But with the CTEA as good law, which was upheld as constitutional by the United States Supreme Court in January 2003, anyone using the character or image of Mickey Mouse for commercial purposes and without permission until 2023 would be liable for copyright infringement. A group ranging from Internet publishers to college associations sought to undo the Copyright Term Extension Act of 1998 through a legal challenge, Eldred v. Reno, later renamed Eldred v. Ashcroft. They argued that the CTEA impairs First Amendment rights and that the Constitution does not allow Congress to pass such an extension. In February 2001, the D.C. Circuit Court of Appeals unanimously rejected the first argument, repeating that there was no First Amendment right to make commercial use of someone else's copyrighted works. However, the court did show some disagreement on the second argument. While the majority of the judges ruled that Congress was empowered to enact the CTEA, one dissented and said that Congress cannot extend copyrights when the extension simply prolongs a holder's control and does not advance artistic ends. In January 2003, the United States Supreme Court similarly upheld the CTEA in a 7-2 decision written by Justice Ruth Bader Ginsburg. The Court majority found that Congress had the power to extend copyrights and that there was no indication Congress was trying to create a "regime of perpetual copyrights." Similarly, the Court majority rejected the First Amendment challenges to the CTEA, noting the "limited monopolies" created by copyright were compatible with First Amendment principles. Congress's power to protect copyrights stems from the Commerce Clause. Under Article I, Section 8, Clause 8, Congress has the power "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" (go here for more constitutional language). The case is now going to the Supreme Court for a final decision. The Supreme Court agreed in February 2002 to hear the case (technically, it granted certiorari to the plaintiffs' petition), will hear arguments in the fall of 2002, and will decide sometime before the spring of 2003. A copyright essentially is the right of an author to control the reproduction and distribution of his or her intellectual creation. Particular expressions can be copyrighted, though the basic idea cannot (Mickey Mouse can be copyrighted, but the idea of a cute animal character cannot). Even though the holder of a copyright controls the reproduction, adaptation, distribution and display of the work, certain kinds of uses (such as for parody and for review) are still permitted under the doctrine of fair use. From 1909 to 1976, copyrighted works could be protected for a total of 56 years (28 years for an initial term, and 28 more years in a renewal term). The Copyright Act was revised in 1976 so that copyrights would endure for a period depending on the kind of copyright holder. For an individual author, then copyright would last for a period of 50 years from his or her death. Copyrights in other works, such as those created "work-for-hire," would last for 75 years from publication or 100 years from creation. The CTEA extended these periods by 20 years each. Under the CTEA, works published more than 95 years ago are in the public domain. Works can also be in the public domain if the copyright holder does not protect his or her copyright, which is why companies like Disney occasionally seem to come down on people who do not necessarily intend to do the copyright holder any harm, such as the creator of a fan website. Sources: Eldred v. Ashcroft was decided by the Supreme Court on January 15, 2003, and is available on-line via Findlaw.com here. Information on the plaintiff's case is on-line here. Harvard's Open Law Project also has collected documents on the case, on-line here. |
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