Information Technology and the Law

                 One of the indirect issues that the U.S. v. American Library Association case brings is jurisdiction over the internet. Throughout our discussions this semester there were questions about how the internet should be governed. One thing that makes the internet unique is how global it has become. Of course, things like television, radio, telephones etc. are global as well but not on the same level as the internet. One can put files, websites, blogs, etc. up from any where in the world and to the recipient it is the same as if the sender was right next door. Take obscenity for example. One could put up a website in Vermont which would be considered obscene in Texas. However there is not really any practical way to make this website unavailable to all of Texas nor should there be. However, at least domestic issues like this can be appealed to the Supreme Court. If one is unhappy with the law then they can either follow a clear political or legal path to try to have it changed. With the internet, this is essentially impossible.
                    Laws that are supposed to have jurisdiction over a certain region become in effect global laws when applied to the internet. If Bob tries to illegally share files in the United States he is susceptible to prosecution. However, if he shares files in some country with more lenient rules he might escape punishment. Of course, with things like international treaties some of these issues are addressed. However, others are not. It is often hard to find consistency in internet law.
                  This problem potentially answers one of the questions I had about ICANN. Everyone agreed that ICANN was not setup ideally. I argued last week that it was unlikely to change any time soon. This week I’d like to ask what if it did? If ICANN could be made into an international institution mandated by the UN with real international representation perhaps its role could or should actually be expanded beyond simply maintaining domains. Perhaps one day ICANN can serve to provide some consistency for internet law. At the very least it could help settle some disputes or provide compromises when possible. Take the U.S. v. American Library Association case again. One of the major complaints about the filters was that they both over-block and under-block. However, what if there was an international domain for more obscene websites that did not cost any more to use. What if there were actually incentives for people to not try to break these rules. Obviously we would need some sort of global definition for obscenity which would be nearly impossible to create. Of course, I am thinking a bit idealistically here. As I argued last week, ICANN is unlikely to become an international institution let alone an international internet supreme court. Furthermore to define many of these international laws would be very difficult. My suggestion here is merely meant to point out why ICANN is more important than it might first appear. As global as the internet is, ICANN is right at the center. Under the right circumstances it could serve some sort of role similar to what I have described. From a big picture perspective, normatively it would seem appropriate that there was some sort of international governing body over the internet.

                  For better or worse I believe ICANN is here to stay… at least for the time being. It seems that most people agree that ICANN in its current form is not the ideal solution. There are numerous arguments against it ranging from the decisions ICANN makes to who is making the decisions. Many people raised viable alternatives to the current setup which sound better in theory to the current system. However ICANN still exists today with all of its problems. Thus the question is if ICANN is so obviously bad and there are many possible alternatives why has ICANN not been changed? The answer probably has a lot to do with politics. Those with the power have little motivation to change the system. Worse yet it is not even completely clear who is in power.
                  There have been a number of different alternatives suggested. For example, search engines have become so good that one can make the argument that the entire DNS is not really necessary any more. There is already a heated competition between different companies that produce search engines. While many believe that Google’s search engine is the best Google has an incentive to maintain and improve its search engine to maintain its market share. However there are many arguments against this solution as well. Even Google’s search engine is often the target of criticism. Another solution might be to eliminate all of the .com, .edu etc. sites and make all sites under the jurisdiction of one country. For example, instead of www.yahoo.com we might have www.yahoo.co.us. In class other alternatives were mentioned as well.
Rather than focus on which alternative is best I would like to focus my post this week on what it would take to implement significant changes to the current system.
                  The common problem with all of these solutions is that they require significant technological changes on many different levels. This change is very unlikely for a number of different reasons. First ICANN itself would probably not be a huge advocate of any of these plans as they would eventually lead to the dismantling of ICANN. One can reasonably assume that ICANN would not go down without a fight. As mentioned in class, if the government decided to pursue a different approach and not renew ICANN’s contract it is unclear that this would have any real effect on ICANN. The way the internet is structured right now it is virtually impossible to create a website without ICANN’s, involvement at least indirectly unless you want your website to look like 204.123.23.212.
                  Most of the large companies would also be unlikely to accept any of these plans without a fight. Take Microsoft for example. Virtually everyone who uses the internet probably would know to find Microsoft’s homepage at www.Microsoft.com. In fact, usually one can guess a company’s website without using a search engine. This is a huge advantage for the companies that already have the websites they want. It is unlikely that a company like Microsoft would want to give up their .com address. Microsoft is a particularly interesting example because of how large a role they play in the internet. Internet Explorer dominates the market. If Microsoft were to fight a plan to change ICANN it would have a very powerful bargaining chip if any change were actually implemented. Between Microsoft and ICANN the government contract is hardly needed. If a dispute erupted after the government cancelled ICANN’s contract it would not even be clear to many people that the US government would be the ones who should step in and file a complaint. Many believe that ICANN should not be run through one government but through an international agreement.
                  This idea suggests another type of solution that was brought up but would also be very unlikely. ICANN can be improved on an organizational level without significantly altering it on a technical level. This solution would likely include jurisdiction over ICANN to be shifted from California and United States law to international law created through treaties. ICANN might also end up being restructured internally. Maybe it would be dissolved and its responsibilities handed over to the United Nations. The common idea between all of these types of solutions involves the United States giving up some of its power or perceived power.
                  There are many reasons why it is very unlikely that the United States would simply relinquish control of ICANN to an international body. Our country has a long history of being reluctant to give up power or responsibility to the international community. This has never been truer than it is now under the current administration. However, this reluctance would have roots that go far beyond simple historical precedent. As signaled by the fact that ICANN is contracted by the Department of commerce, the internet is an essential part of the US economy. Almost every company has a website. Some only use it for advertising while others rely completely on the internet for their business. This means that ICANN has an integral role in the US economy which makes it very unlikely that the government is going to want to give up whatever control it has. Even if ICANN should be an international organization it is not right now and it is unlikely that the government will allow this to change.
                 There is also not enough public attention on the issue to really have it change. Obviously, many in the technical community and the legal community are concerned but the vast majority of people are probably ignorant that something like ICANN even exists. Even if they do know it exists they probably do not fully understand how it is run and what the issues are. Furthermore there is no clear consensus as to what would be the best way to change ICANN. Even if there was a huge outcry to remodel the current system there are far too many opinions on how to change it or even who should change it. If the Department of Commerce agrees to cede control who do they give it to? Who decides who to give it to? Would ICANN pay any attention to this decision? Would the companies under ICANN that actually run the servers pay any attention to ICANN? None of these questions have been completely answered. Perhaps one day ICANN will change but it will not be any time soon as these are all complicated questions and it is not even clear who should be the one answering them. The longer ICANN is around and the more established and accepted it gets the harder it will be to change the system. Thus, it is probably safe to say that ICANN will not undergo any hugely significant changes in the near future if at all.

(1) The Verio court ruled that website Terms of Use (TOU) binding on a visitor, if the visitor knew that the TOU existed and that the TOU claimed to bind everyone who visited the site. Was this the correct conclusion?

         I think this is a very interesting question that has been passed over a bit in our discussions. In this case there was no question whether both sides understood the terms of use. Verio openly admitted that they knew it was there and understood what it meant. In this situation I think that there is a valid contract between Verio and Register.com. Verio knew that Register.com did not want them using their website in the manner that Verio chose to. Register.com clearly stated that if someone intends to use their website in some manner that Register.com does not approve of then that visitor is not welcome. Therefore, at the very least there is no question of implied consent. Even if Verio successfully argued that there was no legal contract they should have known that their actions made them unwelcome. This fact returns us to the question of how much control does one have over one’s website. I will return to this question later. First I would like to address the contract issue.
         In my opinion, the district court does a very good job of explaining why this is a legal contract. Verio presented two defenses. The first was that Register.com’s TOU violated the agreement they had with ICANN and therefore Register.com’s TOU were void. However, the court quickly points out that the agreement between ICANN and Register.com explicitly states that it does not grant any special rights to third parties. Therefore Verio cannot use that contract as part of its defense.
         The other major claim Verio makes is that they did not agree to the contract. They claim that although they understood the terms of the contract they did not agree to it. However, the contract clearly states that by using the WHOIS database the user is implicitly agreeing to the terms of use contract. Verio makes a weak claim that it never had to click an accept icon at any point. Therefore, Verio claims that they did not agree to the contract. This line of argument raises a larger question. Assuming that there is a meeting of the minds and both sides understand the terms of a contract, what is necessary for consent? Does one need to sign a paper? Click a link? Orally agree? Or, in this case make use of a utility? In this situation, because Verio admitted that they understood the terms of the contract then they should have understood that by using the WHOIS database the were agreeing to the terms of the contract. If they did not agree to the terms then they could have chosen not to use the database.
         Thus, it would seem initially that the court got it right and that this was a valid contract. However, there are a couple of issues that Verio did not directly bring up but are relevant. The first one the court addressed directly. The issue was whether the WHOIS database constituted a public utility. The court quoted, “the Internet is, by no stretch of the imagination, a traditional and exclusive public function. Per most of its history, its growth and development have been nurtured by and realized through private action.” While this statement might be true one could make a strong case that just because the internet began in the private sector that it has not outgrown its old characteristics. The internet is constantly growing and changing. It is constantly becoming a more integral part of people’s daily lives. As it continues to grow it is not so clear that the internet should not be considered a public utility. The court quotes two tests for a public utility:

(a] person, corporation, or other association carrying on an enterprise for the accommodation of the public, the members of which have the right as such to use its facilities. Instances of a public utility are common carriers, common innkeepers, telegraph and telephone companies, and gas and electric light companies.

New York courts define a public utility as:

A privately owned and operated business … which is engaged in regularly supplying the public with some commodity or service which is of public consequence (and] need … The teat for determining if a concern is a public utility is whether it has held itself out as ready, able and willing to serve the public.

One could make a strong argument that the public has a right to use the internet as a whole. Maybe the public as a whole does not have the right to access every website but they do have the right to access the internet. The WHOIS network would seem to be an integral part to using the internet. It could certainly be considered to be “supplying the public with some commodity or service which is of public consequence and need.” The internet is so new that looking at historical precedence for it is often not appropriate. It would be more than reasonable to assume that at least some of the original policy decisions about the internet were wrong.
         In the end, the question that this entire discussion will invariably boil down to is what rights do website owners have over their material. The WHOIS database is available to everyone using the internet. It certainly is an integral part to the internet. So should anyone have the right to limit access to its data. Even though Register.com is merely trying to limit access to the database under certain circumstances should it have this right at all or should the database be considered a public utility?

          In this previous post a question was raised over who should be responsible to prevent trespass. I wanted to pose a similar question for the CompuServe v. Cyber Promotions case and for electronic spam in general. In this case, the server of the spam recipients is suing the spammer. CompuServe complained that it was losing customers and its resources were being used by the spamming. From the complaints CompuServe received it is clear that the actual end-recipients of the e-mails did not want to receive this content. CompuServe had some legitimate complaints. Also, people should have a right to, upon request, stop receiving unsolicited spam. However I would argue that CompuServe should not be the plaintiffs in this case nor should Intel. The fundamental question is whether e-mail service providers should be allowed to search through the content of an e-mail to decide whether or not to deliver it to the end-user.
          As Dan Burk argues, any action by CompuServe will unavoidably turn into content filtering. CompuServe is upset because its customers are upset. However, as Burk suggests, had the spam contained content that the end-recipients wanted then CompuServe would have had no objections. Burk used the example of a certificate for $100 in eCash. If CompuServe had tried to sue Cyber Promotions over that their customers would have been furious. In the other case that Burk mentioned, Intel v. Hamidi, Intel was also angered by the content of the e-mails rather than the quantities. Had Burk sent e-mails describing how wonderful it was to work at Intel then he would have been encouraged instead of sued.
           The most obvious analogy to e-mail is snail mail. Imagine if the United States Postal service decided to sue you for sending mail to people telling them that they should stop sending mail through the Postal service. Dan Burk presents another example. He explains that FedEx cannot sue a creditor for sending a message through its service that resulted in the recipient boycotting FedEx. It is against the law for anyone to open or examine someone else’s mail so neither FedEx not the US Postal service should be able to sue because they should never have learned the contents of the mail. They also are unable to filter mail for the same reasons. It is up to the recipient of the mail to decide what to do with all the mail received. If a recipient does not want to receive unsolicited e-mail from a party they can contact that party and request the party stop sending mail.
          Ideally, electronic mail should work the same way. If an individual does not want to receive spam from a party they should be the one to sue that party if the e-mail continues after the individual asks the party to stop. There is even the large potential for enormous class action lawsuits against spammers. Likewise, these individuals should also be the ones to control what e-mail gets filtered by the system. If Intel or CompuServe wants to provide an optional service to filter content upon request from its customers this would be appropriate. However, if the filters fail because the spammer is going to extraordinary measures to circumvent the filtering technology it should be up to the individual to sue. CompuServe or Intel might help coordinate the lawsuit on behalf of its customers but it should not be the main plaintiff.
          There are some significant differences between e-mail and snail mail that do complicate this analogy a little. The most important distinction is it is far easier to send mass e-mail in bulk. An e-mail spammer does not need to go through the trouble of printing out thousands or even millions of pamphlets to send out. They also do not need to pay for postage as they would with regular mail. Worse yet, they do not even need to have an actual address to send an e-mail to. With some relatively simple algorithms they can create a list of potential e-mail addresses and send out an e-mail to each one. Chances are many of them will be real and some recipients might even respond. It is also very easy to create new and fake addresses. Every e-mail sent can appear to come from a different random e-mail address even though in reality they are all originating from the same source. E-mail spam can also be sent out instantaneously at any time. In general sending spam through e-mail is far easier and cheaper than sending spam through snail mail. Thus, there is an ongoing arms race between spammers and filters.
         Despite the can-spam act and attempts by filters spam is more widespread than ever. From personal experience, I know it is often easier to simply create a new e-mail address after a while then to deal with all the spam. This is exactly what CompuServe was afraid of when they filed their lawsuit against Wallace. Certainly spam is a serious problem and companies like CompuServe have a legitimate grievance. However, the other important question we must answer is what privacy rights should e-mail users have and what rights should e-mail providers have? Many of the issues we’ve previously discussed surface again. There is the potential for EULAs stating that e-mail providers have the right to filter one’s e-mail for spam or simply for content. As has already become the case, much of spam is now originating overseas which makes the can-spam act very difficult to enforce. One can even make the argument that e-mail providers would not even need to violate the privacy of a confidential e-mail because no human eyes ever see the e-mail. However, to return to the snail mail analogy one last time, if the US postal service decided to begin filtering mail to eliminate unsolicited advertisements by having a computer examine each piece of mail many people would probably object. Perhaps the same should be true of e-mail as well.

        In this week’s post I wanted to take a closer look at reverse-engineering as fair use. As the courts have stated in many of the cases we have read, reverse-engineering is an essential ingredient to the creation of new and innovative ideas. Technology evolves over time. Each new creation stands on the shoulders of its predecessors. Computer programs by definition are written in code. It takes a fair amount of training to understand a program even if one is looking at the code in a high level language. The code that consumers gain access to when they purchase the rights to use software from manufacturers is almost always in the lowest level possible. As written in the decision for Sega v. Accolade, “computer programs are distributed for public use in object code form [which] often precludes public access to the ideas and functional concepts contained in those programs, and thus confers on the copyright owner a de facto monopoly over those ideas and functional concepts. That result defeats the fundamental purpose of the Copyright Act - to encourage the production of original works by protecting the expressive elements of those works while leaving the ideas, facts, and functional concepts in the public domain for others to build on.” The true purpose of copyright law is to encourage innovation. Ensuring that people are compensated for their efforts is a necessary secondary outcome.
          Another important corollary to this idea is interoperability. Many of the cases we read focused on allowing reverse engineering to achieve interoperability. In the Accolade decision the court ruled that Accolade was allowed to copy a small portion of code to achieve interoperability. Likewise, in the Lexmark decision the court ruled that Static Control was allowed to copy a portion of the code on Lexmark printer cartridges so other cartridges can work with Lexmark printers. In general the burden is placed on the copyrightable idea. One justification that Justice Sutton used in his opinion was the “copyright protection does not exist because granting protection to the expressive component of the work necessarily would extend protection to the work’s uncopyrightable ideas as well.” This opinion means that if companies try to intertwine their original ideas with code that is meant to prevent other people from writing compatible programs then they lose the copyright on their original idea.
          Companies are not without options however to protect their code. Trade secrets are one major tool they use to try to protect some of their uncopyrightable ideas from being copied. The Accolade case is a great example of this. Sega tried to place code in their program that was required to make games compatible with the Genesis. When Accolade could not fully understand this small segment they chose to copy it so they could produce compatible games. The courts upheld this as fair use because as far as Accolade was concerned there was no other way to produce these games. Sega complained that this code printed out a message that claimed that Accolade’s games were licensed by Sega but the court rejected this argument stating that there was no other option for Accolade.
          With this background in mind, the question I’d like to raise is should all computer programs be open source. The easy answer is no. Companies are entitled to their trade secrets. It would be very difficult to craft a law that would require companies to release their source code without violating all sorts of rights. On the other hand more open source would increase innovation and the quality of all products. When code is subjected to public scrutiny all sorts of bugs and inefficiencies are found. In the end the code almost always turns out better. Normatively, and based on where the emphasis is in copyright law it would seem that the more code we can make open source the better. If code were open source then much of the case in the Sega v. Accolade case would be moot. If there truly was an alternate way to produce games without printing the Sega logo then Accolade presumably would have used it. This is perhaps where some sort of law could be passed that might be a step in the right direction.
         Instead of explicitly stating that a company must release their source code there could be incentives created to encourage them to do so. Often times it would not even be necessary for them to release their entire source code. I think this is part of what the Sega v. Accolade case was getting at. Sega could have released enough code to at least allow companies to create games that did not print out Sega’s license screen. Given the choice, they have little incentive to do this right now. Even if Sega new ahead of time that they would not be protected if Accolade used their code they still probably would have taken their chances with maintaining their trade secret and making the process for Accolade harder.
          However, their are other incentives that the law could provide to make one’s source code open. For example, the law could provide more protection to open-source code. If a company chose to hide their source code then they would not be as protected if another company copied it as in the Accolade case. However, if the code were open source then companies who use the code should have a greater burden placed on them to prove that they are truly creating a new and innovative work. Exactly how far the burden should shift would be an interesting question to debate. One would not want to create a deterrence for innovation by scaring off innovators because of fear of legal liability. Also, it often is not necessary for companies to release all of their source code for their to still be at least some benefit. In fact, some times reverse engineering allows people to find problems or shortcomings in code that would not otherwise be evident. However, this point aside open source means that many more minds are working on the same problem and this is usually a good thing.

         I think it is important to take a step back and recall the original purpose of copyright law is to protect the incentive to create. Most people would probably agree that it is essential that a person is rewarded for his work. Without copyright law there would be very little incentive to create. For example, there would be very few authors who would be willing to devote a year or more of their life to writing a novel if another person could come along, change a few words and sell the book as his own. The same idea applies to technology. It would be illegal for someone to take one of Accolade’s games, copy it, put a different CD label on it and then to sell it as his own work. Thus it is obvious that on some level the authors of creative works deserve certain rights over their work to protect the incentive to create.
          On the other hand, one must be allowed to create. Looking at the literature analogy again if authors were not allowed to build on the work of predecessors then much of the best literature would not exist. The classic example is Shakespeare’s Romeo and Juliet. Imagine if no new story could be based on star-crossed lovers with feuding families. Once again this analogy holds to technology as well. Each new piece of software and hardware, every new innovation is built upon the works of others. Reverse engineering is an unquestionably a fundamental part of this process as another post explains. In general, it is essential that innovators have the right to create even if this means using some of another authors work.
          These two essentials to innovation create an unavoidable conflict. The purpose of copyright law in essence is to protect innovation. Thus the goal must be to maximize the incentive to create while minimizing any hindrances to creation. All of the questions we have raised in our class discussion and on this blog relate back to this fundamental conflict. Copyright law works hard to find a balance between these different issues. Essentially I think in every case there are two fundamental questions that must be asked and their answers weighed against one another. The first is how the plaintiff is being harmed in the case. The second is how creative or innovative the new idea is. Many of the other issues such as reverse engineering and EULAs would be easy to answer if one can find a satisfactory balance to the answers to these questions for each case.
          For example let us look at Sega v. Accolade. The harm to Sega is their loss of ability to decide who can and cannot make games for their Genesis console. The new idea or in this case new ideas are all of the new games that Accolade wishes to produce for the Genesis. No one questions the fact that Accolade’s games themselves are original. Accolade merely used reverse engineering to learn the syntax to create these games. Because Accolade’s games themselves are not violating copyright ideas they should be allowed to use reverse engineering to learn how to manufacture games. The fact that Accolade is clearly coming up with original products probably outweighs almost any potential claim made by Sega. In this case this is especially true as Accolade’s products can add to the value of a Sega Genesis console even if they diminish the value of the individual games made or licensed by Sega. The trademark issue here becomes a moot point essentially because Accolade had no other avenue to pursue their goal other than licensing with Sega which would have required them giving Sega a monopoly of sorts over their game.
         The Sony v. Connectix case is a little less clear because it is harder to judge the creativity of the new idea. The potential harm to Sony is an increase in game piracy and a loss of sales of the Playstation console. Even though the emulator produced by Connectix did not run games at the same level of quality as the Playstation it was essentially serving an almost identical purpose to the original Playstation. Thus it is hard to say that Connectix has an entirely new or innovative idea. Therefore Connectix fails the test outlined above.
        While the test I propose gets at the heart of the copyright issues, it probably could not be used in the form I mention because it is far too broad. Current copyright law does a pretty good job usually of trying to balance the issues and courts often take some of these issues into account when they make their ruling. However, what is clear about my test is that the issues involving copyright law are very complicated. The laws have been revised over and over again as new issues arise and policy makers search for the correct balance. Because of this fact I would caution against allowing EULAs to become standard and enforceable. As mentioned here if every software manufacturer decided to put a EULA on their product than copyright law and issues involving fair use for reverse engineering would all be moot as these rights would be signed away in complicated EULAs. Copyright law is debated and usually represents compromises to issues. In order to protect innovation we must also protect the laws that protect innovation. The issues addressed in EULAs should instead be considered by policy makers and written into copyright law however is appropriate.

         Professor Felten asked us to read a small sampling of the many briefs that were filed in the MGM v. Grokster case. The briefs filed in support of the respondents include many of the parties one might expect such as internet law professors, various technology companies, etc. It was quite obvious to see the motivations for their briefs. On the other side, most of the names on the briefs were also not surprising. One name on a brief that caught my attention briefly was Napster. At first one might find this completely normal if not expected. It was the A&M Records vs. Napster case that began the legal battle between the RIAA and p2p companies like Grokster. It is quite easy to see why Napster would have motivations to file a brief on behalf of the respondents. However, their brief was in support of the RIAA’s position not in support of Grokster. The obvious question here is why would Napster file a brief in support of a position that goes against their apparent interests?
          On the first page of their brief they answer this question as follows: “The primary difference between amici and Respondents is that amici have secured licenses to distribute the music or films they offer to their customers and
Respondents have not.” They go on to argue that they have no way to compete with the “Respondents’ illegal black market services.” They claim that the Ninth Circuit’s decision did not correctly apply the Sony decision in this case. This position is especially laughable as only two years ago it was this company (at least nominally) that was asking the courts to rule in exactly this manner. They claim that under their new management they have cleaned up their act and have found a way for the RIAA and p2p networks to compromise. They insist that this alliance is in the best interest of the general public good. They go even further by claiming that they are the true innovators whose rights have to be balanced with the RIAA not the respondents. They claim that it is their business that is irreparably damaged by companies like Grokster. Finally, they also claim that the Sony decision was misinterpreted by the ninth Circuit. I wanted to take issue with each of these claims in turn.
          The most faulty claim, in my opinion, is that they are the “true innovators.” This claim is ridiculous. They compare the relationship between their companies and the respondents companies to the “difference between establishing a large retail operation versus setting up a card table at a street corner and selling counterfeit goods.” (page 9) They explain that their company has put millions of dollars into negotiating a licensing deals with the RIAA to make their company legitimate. However, they completely fail to mention the fact that the company (at least in its present form) had nothing to do with the creation of the technology that they are now utilizing. In fact, their entire business is built upon technology that was created by the very people they are writing their brief against. They state that the respondents are trying to take the “easy way out.” But, in fact it is the RIAA that is taking the easy way out by suing the people who are creating the technology, not doing the infringing. It might be harder, but as many of the briefs in support of the respondents have stated it is feasible for the RIAA to sue the direct infringers. They have done this on a small scale but are reluctant to do this on a larger scale in part because it would mean harming their already deteriorating public image. In the respondents brief their is a quote in the 29th footnote that states that “‘10 percent of users
are responsible for 90 percent of the infringement.” This assertion makes it highly suspicious that the recording industry cannot target the real infringers of the case.
          The claim that companies like Grokster are providing unfair competition is also very questionable. This brief explains that companies like Napster that have made the effort to provide a legal service are not profitable because of p2p networks. This is not true or at least not entirely true. The companies in the RIAA take a very large cut of the revenue from companies like Grokster. So while companies like Grokster might have an unfairly low price, companies like Napster are forced to have an unfairly high price based on their agreement with the RIAA. The companies in the RIAA have been accused of price fixing before and paid out a multi-million dollar settlement. There is no reason to believe that even if companies like Grokster were gone that the prices would go down at all. The demand for services like Napster would go up and there is no reason for the RIAA to lower the royalties in its contract. Therefore, one could very easily make the argument that it is actually the RIAA which is impeding the profits of Napster more so than companies like Grokster. However, to be fair, the fact that Napster is speaking on behalf of the RIAA does bring this part of my argument into question. Then again, depending on how the court rules here, there is no reason to believe that companies like Grokster are operating illegally. They are not themselves providing the infringing content and they have no more motivation to go after their customers than the recording industry does. Perhaps they simply have come up with a superior business plan. This is not what the Petitioner’s side would have you believe but it is ultimaetly up to the court to decide.
          Finally, the claim that Napster is acting with the best of intentions is also not quite accurate. Napster has made use of a technology developed by the people they are now speaking out against. If they get their way they will eliminate a significant amount of the competition that faces them which will allow them greater control over the market. To answer the original question, Napster wrote this brief because it has sold out to the RIAA. However, the ironic thing is that had the law been the way Napster is now suggesting earlier on, Napster (in its current form) might never have existed.