The lawsuit was filed by 13 players in the music industry--all large, well-known companies including Arista Records, Sony Music and Warner Bros. Records--against four important Internet backbone providers--AT&T Broadband, Cable & Wireless, Sprint and UUNet.
Although the plaintiffs accused the backbone providers of no wrongdoing, they asked a federal district court in New York to order them to block access to one Web site. The Web site was Listen4ever.com, described by the music industry as offering the ability to download entire albums from a central server without permission of the copyright owners. The plaintiffs said Listen4ever was worse than Napster, and they're probably right.
Though it may have been even easier to use than Napster, what really distinguished Listen4ever from the granddaddy of online music copyright infringers was its anonymity. While Napster never tried to hide its identity, Listen4ever reportedly took numerous steps to avoid detection by U.S. copyright owners, including by providing questionable contact information in its domain name registration records and by failing to include any identifying details on its Web site, which apparently resided on a server in China.
There seems to be no doubt that, based on the facts in the complaint filed by the music industry, the operators of Listen4ever flagrantly violated U.S. copyright law. Had the plaintiffs filed a lawsuit against Listen4ever in the United States, they surely would have had an even easier time prevailing than they did against Napster, which involved the more difficult legal issue of indirect copyright infringement.
However, the music industry did not file a lawsuit against Listen4ever, opting instead to sue those companies that allowed Internet users to access the outlaw Web site--the same companies that allow Internet users to access just about every Web site. The plaintiffs said this was necessary because "Listen4ever's evasive behavior clearly indicates its desire to continue operating beyond the practical reach of U.S. law."
The music industry said its decision to sue the backbone providers was the best, if not the only, way to prevent people from making illegal copies of its songs from the Listen4ever Web site. And, they said, its legal request was authorized by the Digital Millennium Copyright Act (DMCA): "The Listen4ever site presents a clear example of willful and egregious copyright infringement via the Internet by an entity trying to avoid liability under United States law by using host servers for its Web site located in China. Congress intended to prevent the harmful effects of such a maneuver when it enacted...(one section of the DMCA), which allows for an order restraining an ISP from allowing access to a specific online location hosted on servers outside the United States."
Though their motive as copyright owners that are undoubtedly being harmed is clearly understandable, the music plaintiffs' argument is flawed and dangerous. Perhaps the best thing that can be said about it is that the lawsuit was voluntarily dismissed five days after it was filed, after Listen4ever went offline, making the matter moot.
Had the lawsuit not been withdrawn, online civil libertarians seemingly were prepared to fight it as vehemently as they've fought other battles. In a press release issued by the Electronic Frontier Foundation on the Monday after the Friday on which the suit was filed, an attorney declared, "We shouldn't be copying the Great Firewall of China here in the United States," referring to the government-imposed restrictions placed on Internet access in the communist country.
In seeking their order against the U.S. backbone providers, the music industry said the blocking they requested was a simple process that could be effective without interfering with access to other, non-infringing material. However, those are points some IT professionals began debating even in the few days before the lawsuit was withdrawn.
In addition, although the plaintiffs insisted they had no alternative to stop the infringement occurring on the Listen4ever Web site, it's not clear whether they had exhausted all of their options, including by working with Chinese law enforcement authorities, which have shown an increasing willingness to pursue some piracy.
Despite the strengths or weaknesses of the legal argument--which, given the lawsuit's rapid resolution, was never fully developed, at least publicly--any lawsuit against backbone providers for cases involving copyright infringement could have far-reaching and devastating consequences. Copyright lawsuits should be matters between copyright owners and copyright infringers (and, where appropriate, those who profit from or contribute to the infringing activity); infrastructure players on the sidelines should not be involved.
While the DMCA may allow lawsuits of the type brought in this case (and only another, similar lawsuit will tell us whether this is so), such a law is not good policy. If this "but-for" test is appropriate under these circumstances, who else will be sued: software developers that create browsers that allow users to access any URL?
But for the availability of these browsers, users could not access sites such as Listen4ever, right? Of course, an injunction prohibiting Microsoft from distributing Internet Explorer as a way of stopping the illegal activity occurring on Listen4ever's Web site is a preposterous approach.
And won't U.S. companies that want other countries to lift restrictions on Internet usage look hypocritical if our own courts require U.S. companies to ban access to foreign sites?
The real problem--and there's no denying the music industry faces a real problem--is not access. It's infringement.
Doug Isenberg, an attorney in Atlanta, is the editor and publisher of GigaLaw.com. Isenberg writes and speaks frequently about Internet law and is the author of the upcoming book, "The GigaLaw Guide to Internet Law," to be published by Random House in October 2002.
