"The practice of filing thousands of lawsuits is a game of chicken, and not a sustainable model for the industry or the courts," Mr. Zittrain said. "The overall puzzle for the industry is how to truly convince the public that this is in the public interest."

He said there was no obvious historical analogue to the scattershot subpoenaing of individuals in copyright law enforcement, which has traditionally been aimed at businesses or people who are profiting from illegally copied material. He likened it instead to raids during Prohibition, or red-light cameras that catch drivers disobeying traffic laws when they think they are unobserved. Both have given rise to social outcry, Mr. Zittrain said, even though they were used simply to enforce the law.

....Some lawyers who were contacted by people who received notices from their Internet providers say the cases raise many questions because of the way the software in question works.

Some versions of KaZaA automatically designate certain folders on a computer as "shared," so users may not have realized their personal music files, copied from legally purchased CD's, were available to others.

Daniel N. Ballard, a lawyer with McDonough, Holland & Allen in Sacramento, Calif., said he was representing a Brooklyn woman who believed she had prevented her files from being accessible to the KaZaA network. He said computer intruders may have rearranged the files on his client's hard drive without her knowledge. The more people who aggressively contest this the better, as there are many holes in the process; but this is terribly expensive and time consuming for individuals. Working together would be much more efficient.

Mark Rasch elaborates on some of the legal angles in the Register:

The U.S. Constitution permits Congress "to 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." Under intensive lobbying by the movie, publishing and recording industries, Congress has nudged that "limited" time from the original 17 years in 1789, to the publisher's life plus 75 years today — a time limit that the U.S. Supreme Court recently approved.

For this "limited" time, Copyright law essentially grants the author the exclusive rights to copy or reproduce the work, make derivative works, distribute copies of the work (sell, give away, lease or license), and to perform the work, and, of course, to keep others from doing the same.

Simple enough? Not hardly.

....A number of years ago, the U.S. Supreme Court dealt with a man named Dowling, who sold "pirated" Elvis Presley recordings, and was prosecuted for the Interstate Transportation of Stolen Property. The Supremes did not condone his actions, but did make it clear that it was not "theft" — but technically "infringement" of the copyright of the Presley estate, and therefore copyright law, and not anti-theft statutes, had to be invoked.

So "copying" is not "stealing" but can be "infringing."

page 1 | 2 | 3