Harmonizing fair use and self-help copyright protection of digital music.

Before the summer of 2003, there appeared to be little chance that the five major record companies and their trade group, the Recording Industry Association of America ("RIAA"), would sue any more than the most egregious copyright infringers among the millions of file sharers in the United States and abroad. A campaign of mass litigation would be an unfeasible undertaking. For one, there were countless infringers. Furthermore, it was, and still is, impossible to know exactly which file sharer performed the act of downloading, as only the IP address is obtainable and identifiable. Moreover, the record companies would not want to alienate a nation of music lovers, the same people who, presumably, continue to legitimately purchase albums in stores.

Thus, it appeared that the record companies would resort solely to technological means to stop widespread file sharing and copyright infringement, evidenced by Congress's attempts to legislate these copyright-protective self-help tactics. Of course, things have changed. The initial premise, that the record companies would not and could not sue, is wrong.

How successful is this current campaign? According to Nielsen//NetRatings, the number of users of KaZaA, the current standard for file sharing, is down forty-one percent since the lawsuits began. (1) This equates to 2.6 million users abandoning the software within a two-month period. (2) There are of course still 3.9 million undeterred file sharers in the KaZaA networks, with many millions more using other file sharing software programs. Moreover, a recent study by the Gallup Poll organization found that eighty-three percent of American teenagers found free file sharing to be morally acceptable. (3) Of the 261 users sued on September 8, 2003 by the RIAA, only fifty-two had settled by October 1, 2003. (4) When and if the remaining suits go to trial, the RIAA will need to win every case to ensure an exaggerated deterrent effect of suing only .004 percent of all U.S. infringers. If the suits fail, file sharing traffic will resume to normal astronomical levels, and copyright owners will resort to technological methods of protection.

As long as there are technological ways of obtaining free music, there must be technological means of combating infringement. Thus, the suits of September 2003 are likely to be only a time-saving device for the record companies to develop effective anti-infringement technology and for Congress to craft law that allows for copyright justice inside the networks and outside of the courts.

ABSTRACT

Copyright owners have begun to develop and utilize technologies to prevent the infringement that has occurred in peer-to-peer file transfer networks. The legislature and courts, largely ineffective in their efforts to stop the widespread copy and transfer, have been vocal about the owners' self-help campaign. There are a number of bills in Congress that would allow anything from decoy MP3 swarming, to albums that crash computers, to permission for a regulatory body to enter the hard drives of personal computers and delete questionable files. Other bills, however, are attempting to outline a new, digital consumer's bill of rights. Traditionally, there has been little support for self-help in the American legal paradigm. These new technologies are forcing a re-evaluation of self-help, and seem to propose that technological problems require technological solutions. This note argues that legislative allowances for self-help copyright protection must reflect a balance between the obligation to end rampant piracy and jurisprudence that makes the process of law the foundation of societal harmony. Bills of rights are too weakly written, fair notice is but a beginning to the protections deserved by fair users, and free license to copyright owners would cultivate a brutally crippling digital war that our legal system would be unable to contain.

PREFACE

The Apple iPod is a portable hard drive, initially available in five, ten, and twenty-gigabyte storage capacities. It is about the size of a wallet. It is like a walkman, in that it includes a single program (5) that plays MP3 music files. (6) Five gigabytes can store anywhere between 1000 and 1500 songs, so the twenty gigabyte iPod owner would be able to listen to music for about two and a half weeks straight without hearing the same song twice. Out of the box, there is a protective sticker on the iPod screen that reads, "Don't steal music."

This warning is not intended to be sarcastic, because there is a completely legitimate, non-copyright-infringing manner in which one can use the iPod. One simply needs two and a half weeks worth of store-purchased albums (7) and the patience to convert all the songs to MP3 format. It is entirely possible that an iPod owner would do this. It is not likely, however, considering how easy it is to steal music today.

How easy is it? The process is quite simple. Starting with a personal computer ("PC"), an Internet connection, and a single store-bought compact disc ("CD"), the user uploads music to her hard drive. With MP3 encoding software, (8) which ships with most operating systems, she compresses a song from the CD to about one-tenth of its original size. (9) However, the sound quality is not nearly divided to such a degree. This is because MP3 encoding involves a process by which certain sound frequencies, inaudible to the human ear, are extracted, reducing the file size. (10) Psychoacoustically, the listener hears little to no difference. (11) Moreover, the drastic file size reduction frees up space on the hard drive and makes Internet transfer ten times faster. Enter the Napsters (12) and Gnutellas, (13) which are peer-to-peer ("P2P") file transfer systems that allow one user to copy an MP3 file from another user's hard drive, and free music is suddenly everywhere.

Napster was ultimately enjoined from continuing business. (14) However, Napster was a legally vulnerable company, with a centralized mainframe that controlled the transfers. (15) Thus, a court could shut it down. (16) However, the new Gnutella technology appears immune from similar legal action. (17) Gnutella is as effective as Napster was in allowing for file searches and transfers, but it is not a company, and has no centralized mainframe to estop. (18) Gnutella is a piece of software that, once widely disseminated, allows users to connect with one another through freely formed, agile, largely impregnable networks. (19) Moreover, Gnutella was written in open-source code, which enables any software author to copy it, improve it, and create new versions. (20) Most, if not all of these clones can interact with one another. (21) The result is a world wide web of free music seekers operating independently in localized cells.

Copyright owners are livid, and the current means of legal recourse are sluggish and ineffective. Simply put, the law is slower than the technology, and smaller than its users. In turn, copyright owners have begun to develop their own technology to battle infringement, and the law may be applauding these efforts.

Consequently, this note will examine the new copyright protection technologies, their varying degrees of effectiveness in preventing or punishing infringement, and the legislative reaction to copyright owners employing certain aggressive technologies. Seeking a balance between the impetus to protect copyrighted works from infringement and the societal need to prohibit digital vigilantism, this note will conclude with a proposal for an administrative body that properly and fairly weighs both interests.

I. SELF-HELP COPYRIGHT PROTECTION TECHNOLOGIES

To date, any single self-help, anti-infringement technology can have one of three possible points of attack, each target being one step in the process of illicit copying and file transfer. (22) The three infringement subprocesses that the technologies seek to foil are 1) the uploading of store-bought CD songs onto a PC, (23) 2) the encoding of these songs into the MP3 file format, (24) and 3) the transfer of MP3 files between PCs via P2P networks. (25) Frustrating any one of these subprocesses would defeat illicit copy and transfer nearly in entirety.

A. Compact Disc Technology

Currently, the most widely used self-help copyright protection has come in the form of a specially protected CD. (26) There are a number of companies developing disc-embedded protection mechanisms, resulting in a wide variety of effectiveness and collateral difficulty. Generally, these protected discs will either not play in a PC, (27) prevent attempts to upload onto a PC, or in some cases, will even crash a PC. (28) There is little doubt that the albums that have been released with internal copyright protection technology have been prone to illicit copying, however. (29) Moreover, one particular album resulted in a suit against the releasing record company. (30) The litigation eventually settled, with the plaintiff getting nearly everything she requested. (31) The high degree of controversy surrounding disc-embedded protection may be attributed to its potential for wreaking havoc against fair users. (32) A major problem with this particular technology is its tendency to damage the PCs of listeners who never encode or download illicit copies of songs, and, most importantly, have purchased the music fairly. (33) Critics contend that disc-embedded protection is overbroad and severe in its method of copyright protection. (34)

1. SunnComm and Charley Pride

Charley Pride's "A Tribute to Jim Reeves" CD was released with MediaCloQ, (35) a disc-embedded copyright protection developed by SunnComm. When the CD was inserted into a PC's CD-ROM drive, it failed to play. Instead, a window appeared, directing the user to register the album online and download replacement files in an encrypted format. (36) This was problematic for three reasons. One, there was no indication of this requirement on the external packaging of the CD. (37) Two, a user who had no Internet connection would not be able to listen to the album on her PC. (38) Three, the registration site required that the user produce personal information to receive the encrypted replacement files. (39)

One purchaser, Karen DeLise, sued the releasing record company, Farenheit Entertainment, and its label, Music City Records. (40) The action alleged breach of California consumer protection law, false advertising, and invasion of privacy. (41) The suit settled, and thus did not set legal precedent. The settlement agreement, (42) however, signaled that this particular mode of copyright protection is bounded by contract and tort law. The settlement included, among other provisions, that 1) the external packaging would display clear warnings, (43) 2) no personal information would be required, (44) 3) the user could download any song up to six times, (45) 4) second-hand purchasers would be allowed to download, (46) and 5) the company would refund or replace the CDs of any purchasers who are unable to download the encrypted versions via the Internet. (47) These complications rendered the MediaCloQ type of copyright protection inefficient and ineffective.

2. Macrovision's SafeAudio

Regular CD players, like car stereos and boom boxes, have error-correction mechanisms, so that minor scratches on a CD will not render the disc useless. (48) Audio frequencies affected by the scratches are fabricated by the error-correction, which restores the sonic quality to normal. (49) A PC's CD-ROM drive, however, must read non-audio CDs, such as software installation CDs. Thus, the error-correction mechanism in a CD-ROM drive is different from those found in regular CD players in that it leaves the task of audio-corrective frequency fabrication to the audio-playing software application. (50) Capitalizing on this disparity between CD-ROM's and regular CD players, Macrovision developed SafeAudio, (51) which corrupts distinct blocks of audio on the CD. (52) It is, in effect, intentional scratching. A regular CD player can handle the corruption, but a CD-ROM either rejects the CD altogether, or plays the songs with grating pops, hisses, and skips. (53)

Once again, this technology disrupts the good faith user who wants to listen to her store-purchased music on her PC. More importantly, a CD created with intentional corruption will have lower sound quality, fidelity, and reliability over time. (54) Thus, a purchaser who does not even own a computer will inevitably have to repurchase the album.

3. Midbar Cactus Data Shield

Another disc-embedded protection is an evolved version of the SafeAudio style. Midbar's (55) Cactus Data Shield, or CDS, (56) also exploits the difference in error-correction circuitry between regular CD players and CD-ROM drives. (57) Unlike SafeAudio's simplistic audio corruption, however, the Cactus Data Shield will "embed[] annoying pops and jumps in audio content," "hide the CD-Audio tracks on a PC," "or use other CD format changing methods that prevent CD-burning software from working." (58) One method of CDS protection is a highly compressed audio data block attached at the end of the CD. (59) This data block is a poor-sounding version of the entire album, and a program embedded in the disc overrides the PC audio software, forcing the user to listen to the highly compressed audio. (60) This added data can produce an array of odd results, such as the inability to play on a Macintosh, or the inability to play the first song of the album. (61)

The Cactus Data Shield has not arrived in the U.S., but has been reportedly released on millions of albums in Europe. (62) It is utilized by four of the five major record labels. (63)

The Cactus Data Shield may hold the greatest potential for development. It appears that the embedded data could, if designed in such a way, be completely harmless to the fair user. For example, the code could allow the user to listen to the CD on her PC at the highest quality, but refuse to permit her to encode the songs in high-quality MP3 format. This would tread lightly on the good faith user's rights. The best copyright-protective code, it seems, would allow the user to encode the songs in MP3 format, so that she could listen to them on her iPod, but contain some type of signal that would corrupt the audio file if transferred from one PC to another.

4. General Problems with Disc-embedded Protection

CDs encoded with copyright protection pose three problems for fair users and three problems for copyright owners. For the fair user, there has been 1) a lack of notice on the packaging, (64) 2) reduced audio quality, sonic fidelity, and disc construction, (65) and 3) the potential for severe PC damage. (66) Clearly, record labels must begin to place some kind of warning on the packaging of these CDs. The Charley Pride settlement indicates that a failure to do so may constitute false advertising. (67) While warning labels may imperil sales, once disc-embedded protection becomes standard practice, these sales would likely return to normal.

While it would seem that the problem of audio quality loss would have to succumb to a fair compromise in the digital copyright dilemma, there is an extenuating development that would render this difficulty moot. Audio CDs, since their inception, have stored digital music in sixteen bits and 44,100 samples. (68) These numbers determine the capacity for sonic quality of the music. Very soon, however, the standard CD will be released in twenty-four bits and 48,000 or 96,000 samples, reflecting the evolving capabilities of digitally recorded music. (69) For music lovers, this boost should make up for the data lost to copyright-protective control blocks.

The potential for severe PC damage depends on the evolution of the Cactus Data Shield. (70) There is little question that the technology can be devised so that it is harmless to a PC. However, it is also fairly certain that a particularly draconian type could enter viral code in its control blocks, ruining a PC as viruses have done for years. This particular problem is one that requires great attention from the legal community. If the legislature gives license to copyright owners to do whatever is necessary to prevent infringement, an overzealous application might give rise to tort to chattel actions.

Another development that threatens the viability of disc-embedded copyright protection is the noticeably partisan voting in Congress. (71) Republicans have won a number of recent battles, favoring a laissez faire approach, over Democrats who seek to make disc-embedded protection a legal requirement for the industry. (72) There are two mutually exclusive bills on the floor that may determine the fate of CD copyright protection technology. (73) One bill would require that all CDs have embedded protection. (74) The other would make covert embedded protection illegal. (75) It is a remarkably conflicting political divide for a relatively new, comparatively apolitical issue. The second part of this note fully addresses these bills.

For copyright owners, the three problems with CD protection technology are 1) the definition of a CD, (76) 2) the statutory terminology of Fair Use and subsequent amendments, (77) and 3) magic markers. (78) A CD embedded with copyright protection is not technically a CD, and cannot be sold as one. (79) For example, Celine Dion's "A New Day Has Come" was not scored with the distinct "Compact Disc" certification mark. (80) However, this difficulty is largely semantic. As copyright-protected albums become more common, the standard should change, so that these discs will receive the certification and its mark.

The treacherous terrain of Fair Use, however, is not so easily escaped. Title seventeen of the United States Code, section 107, allows for a purchaser of copyrighted material to make a limited number of copies for personal use. (81) This is a critical matter, and will be discussed in greater detail later. For now, it is important to note that the problem of digitally infringed music is so great that section 107 needs to be amended.

Finally, there is the magic marker problem. Apparently, some clever folks have been successful in covering up the data blocks with ink, thereby overriding the copyright protection. (82) CDs that were encrypted to fail in PCs have been widely copied and transferred over P2P networks. (83) Magic markers are not quite the height of technology. Thus, if the premier copyright protection technologies can be beaten by a Sharpie[TM], one might wonder if software authors empathetic to the infringement cause might already be a few steps ahead. (84) Authors of bills in Congress have already foreseen a technology war. (85) This arms race, so to speak, is fundamental to the impetus to create a solution that balances the interests of both copyright owners and the general public. (86)

B. MP3 Technology

The MP3 is arguably one of the most remarkable achievements of the Digital Age. By itself, it is relatively unimportant; it is more or less just a smaller file format. Give it room to move, say, on an Information Superhighway, and it becomes the most radically controversial file format in history.

For the most part, the MP3 is immune from self-help copyright protection technologies. (87) This is so for a number of reasons. One such reason is that MP3s are produced by PC users, and the abundance of encoding software has resulted in an abundance of home-spun MP3s. (88) Another reason is that the MP3 file format is simply a lump of raw data. (89) The data-only file format, such as GIF for digital images (90) or DOC for word processor files, (91) cannot execute code or issue commands outside of the program that reads the data. (92) In other words, it cannot do anything. An email can bear a virus because it is not simple raw data; it may contain an attachment of executable code that devours a PC. (93) MP3s themselves, containing no such codes, are incapable of protecting copyright. The data-only aspect of the MP3 file format, however, does give protection technology developers some room to work with. MP3 watermarking has been created so that illicit MP3s can be recognized by P2P networks and MP3-playing software. (94)

1. Secure Digital Music Initiative

A watermark, for the purposes of MP3, is a song-specific numerical encryption within the data of an audio file. (95) It is the most advanced technological achievement of the Secure Digital Music Initiative ("SDMI"), an ambitious consortium of recording industry leaders, digital technology developers, and Internet service providers, created in 1998. (96) The watermark was designed so that transfer channels, such as P2P networks, and MP3-playing programs, could identify copyrighted songs. (97) Once the watermarking device is incorporated into the programs, encoding CD songs into MP3 format, the transfer channels and MP3 players would refuse illicit copies. (98) SDMI intended to revamp the system so that all players, encoders, and transfer systems would comply with the watermarking standard by incorporating SDMI's technology. (99)

It seemed like an excellent self-help strategy, with little to no impact on the fair user of digital music. Unfortunately, SDMI's confidence was premature. By way of a $10,000 bet, the group challenged that no one could "'remove the watermark or defeat the other technology on our proposed copyright protection system.'" (100) In the end, SDMI lost the $10,000 and their high hopes for watermarking. (101) Adding insult to injury, the cryptologist who broke the code filed suit against SDMI. (102) Ed Felten, (103) an Associate Professor at Princeton University, brought an action in a New Jersey federal court so that he could publish the results of his research at an academic security symposium. (104) SDMI, the RIAA, and Attorney General John Ashcroft were named as defendants. (105) The suit was the first challenge to the Digital Millennium Copyright Act of 1998's ("DMCA") criminal provisions, such as a fine of up to $500,000 and up to five years in prison, that the SDMI had promised Felten if he were to disclose his findings. (106) Felten's challenge to the criminal provisions was dismissed, but he chose not to appeal the dismissal, "[c]iting assurances from the government, the recording industry, and a federal court that the threats against his research team were ill-conceived and will not be repeated." (107)

2. Speculative and Nascent MP3 Technologies

a. The Viral MP3

Currently, it is impossible to create a viral MP3. (108) The "Bloat" hoax, among others, reveal the darkest fears of the free file-transfer community. (109) The Bloat warning came in the form of a mass email from the Internet Western Associates company: Bloat was supposedly an executable string that attached itself to all files with an .mp3 extension, and would fill up the user's hard drive with nonsensical data once the song was played. (110) It would terminally affect all MP3 files and players. (111)

Another hoax, entitled MusicPanel, warned that the secret virus would ruin computers that had obtained any of the 500 most popular songs through Napster or Gnutella. (112) This message was placed in Internet newsgroups and identified disgruntled musicians as the creators of the virus. (113) The virus was supposed to have been surreptitiously hidden within the audio data, and was to execute itself on July 4, 2001, thereby destroying the computers of music thieves. (114) These hoaxes were feeble efforts, but it is not difficult to imagine, however, the devastation that an authentic viral MP3 would cause.

Indeed, while an MP3 is not capable of carrying a virus, it is entirely possible for an MP3's mere presence on a hard drive to exploit a media player's vulnerability and release damaging code. (115) A media player contains executable code, necessary to produce viral harm, and if an MP3 were to contain maliciously-added data, the player could read the data and wreak havoc not unlike the imaginary Bloat virus. (116)

b. Spoof MP3s

The spoof MP3 has already gained some popularity as a protection tactic. The spoof file, which appears to be an authentic MP3 with an .mp3 extension, does nothing when the user tries to listen to it. (117) It is difficult to determine the effectiveness of this method. First, there are not enough spoof files to make file-swapping a hit-or-miss operation. One Congressman recommends spoof swarming, in the hopes that they will produce an environment for MP3 downloading that looks more like the time before Napster, where songs were sequestered and dwarfed by dead ends. (118) Second, because the spoof file only serves to waste the user's time, if the user has a broadband Internet connection, this will be minimized, thereby reducing the spoofs value as a deterrent. Third, many P2P networks are capable of filtering out spoofs, so that they never appear in user searches. If spoofing technology can surpass these pitfalls, it might become an effective and nearly harmless copyright protection method.

The MD5 watermark, developed by the British firm NetPD, is quite different from the aforementioned SDMI watermark. (119) The MD5 is an identification tool that affixes itself to files with specific bit arrays. (120) Thus, if two files have different names but the same digital makeup, the MD5 will recognize them as identical.(121) This tactic was thrust upon Napster by artists such as Dr. Dre and Metallica, who wanted to prove that their copyrighted works were still flowing through Napster channels despite the company's promise to prevent such from happening. (122) The use of the MD5, while incomplete and not entirely reliable as a technology, revealed that the artists were correct. While Napster was banning files containing titles such as "Dr. Dre" and "Dre," the MD5 identified thousands of files that had been renamed "Doctor Dre" or "D.R.E." The MD5 proved to be a basis for a third burgeoning copyright protection technology: P2P network monitoring.

C. P2P Monitoring and Interdiction

RIAA v. Verizon Internet Services, (123) not yet adjudicated but having the makings of a landmark case, has already witnessed a Federal Judge order Verizon, an Internet Service Provider, to identify a subscriber who has traded several hundred songs over the P2P network KaZaa. (124) It is one of the first instances of the recording industry targeting individual file-swappers, and foreshadows the eventuality of network monitoring as a combative measure against infringement.

Monitoring a network is relatively simple, as P2P programs require systems to identify where files are coming from and where they are going. (125 To monitor a P2P, the RIAA could simply enter the network with its own node and observe the flow of traffic. (126) Interdiction, on the other hand, is a more challenging process by which a network monitor may block individual computers from accessing P2Ps. (127) MediaDefender has developed an interdiction method that would close off the user's hard drive from others on any given network, so that users could continue to communicate via email or instant message, but could not trade files. (128) The prime difficulty with this technology, and the reason it has not been implemented, is that it violates a number of established anti-hacking laws. (129) However, if certain bills are to become law, interdiction would likely become standard practice.

If interdiction is possible, so too is the prospect of a network monitor that has access to hard drives and having the power to delete questionable files. (130) For this reason, network monitoring is the most controversial and hotly-contested copyright protection technology. It raises issues of privacy and data misappropriation, and yet appears to be the most effective protection to copyrighted music. (131)

There are at least two questionably legal software programs currently in development that will implement the interdiction model. (132) One, entitled "freeze," will do just that: it will freeze a PC for an unspecified duration of time if it recognizes a recent illicit download of a copyrighted work. (133) The major risk is loss of any unsaved data on the user's PC, not unlike the everyday, unintentional freeze. The second program, "silence," is designed to scan a PC's hard drive and delete infringing files. (134) The first application of "silence" was itself silenced because it was deleting many legitimate files as well. (135)

Whether or not these programs will be used brings the ideological basis for copyright to the forefront. Those in Congress who support monitoring, interdiction and their evolutionary progeny will argue that rampant infringement is more detrimental than loss of Internet privacy and the potential for lost data. (136) Those who eschew interdiction have the reasonably fatalistic idea that licensing the technology will turn the Internet into Big Brother. This note will argue that both parties are incorrect, in that they fail to recognize how interdiction, as well as any other self-help copyright protection technology, must be utilized under the eye of exacting laws and a technologically knowledgeable administrative body. The next section of this note evaluates the legislative proposals that would affect these new technologies, and to what degree each bill fails the various values upon which copyright law stands.

II. PROPOSED LEGISLATION

The emerging digital copyright war has compelled Congress to take notice and legislate. A slew of new bills have been introduced to address the myriad conflicting concerns of parties including the RIAA, technology manufacturers, and the consuming public. For the most part, the proposed legislation has not caused partisan splitting of support, in that as many Republicans as Democrats might back any one bill. However, for every piece of legislation that promotes a wider legal latitude for self-help copyright protection tactics, there is another piece that steadfastly protects the ideals of Fair Use and consumers' rights. Thus, while there is little rift between political parties, a great divide exists between those who wish to unfetter copyright owners and the recording industry, and those who seek to defend the peer-to-peer networks, the consumption of digital music, and fair users. This chapter will delineate the bills and resolutions introduced in the 107th and 108th Congresses that pertain to copyright technology.

A. Fair Use-Oriented Legislation

1. H.R. 107, Digital Media Consumers' Rights Act of 2003

Introduced on October 3, 2002 by Virginia Representative Rick Boucher, (137) the Digital Media Consumers' Rights Act ("DMCRA") (138) attempts "[t]o amend the Federal Trade Commission Act to provide that the advertising or sale of a mislabeled copy-protected music disc is an unfair method of competition and an unfair and deceptive act or practice." (139) This bill's primary function is to guarantee that compact discs with embedded copyright protection, such as the controversial Charley Pride album that was the subject of DeLise v. Farenheit, (140) are clearly labeled "with respect to their playability on standard audio compact disc playback devices ... [and] the discs are not recordable on a personal computer." (141) The DMCRA does not frustrate disc-embedded copyright protection, but rather intends to notify potential consumers of the difficulties and limitations that this technology creates. (142) Fearing that such strict labeling will scare off customers, the RIAA opposes this bill, even though the DeLise settlement indicated that a lack of notice constitutes consumer fraud. (143)

The DMCRA is somewhat mild, in that proper labeling appears to be an inevitability. There are far more controversial issues, such as the legality of spreading viruses to protect copyrighted works. Towards the end of the DMCRA, however, Boucher inserted some interesting, contentious Fair Use amendments. The most volatile of these is the right of a person to circumvent copyright protection technologies "in furtherance of scientific research into technological protection measures," (144) or "if such circumvention does not result in an infringement of the copyright in the work." (145) These two amendments are critical. The allowance to break a protection for scientific purposes is a legal loophole. It will allow infringers to destroy the technology under the guise of scientific research, a flimsy Fair Use defense strategy that is currently widespread. The right to break a copyright protection if it "does not result in an infringement," (146) moreover, is patently and functionally ridiculous. A person could simply circumvent the protection and save the songs as files on her computer. No infringement occurs because she is allowed to make a copy for her own personal use. However, if she is part of a legal peer-to-peer network or backs up her files on an Internet storage site, others could copy her files without any knowledge, or intention to share on her part. At that point, an infringement has occurred, but she has not done anything outside of the legal boundaries that the DMCRA creates. (147) In effect, this amendment severs the liability of the person who initially broke the copyright protection, thereby crippling the technological efforts to protect the copyrighted works. It is unlikely that the DMCRA could pass with these amendments intact.

2. S.J. Res. 51, Consumer Technology Bill of Rights

This resolution was introduced by Senator Ron Wyden on October 17, 2002, and is currently under consideration by the Committee on the Judiciary. (148) The Consumer Technology Bill of Rights ("CTBR") (149) is a simple application of the Fair Use statute with respect to electronic multimedia consumption. The five enumerated rights are time-shifting (150) (recording copyrighted works for later enjoyment), space-shifting (151) (using copyrighted works in multiple playback devices), archiving (152) (making backup copies), platform choice (153) (that any playback device is acceptable), and format choice (154) (that any file format is acceptable).

The advantage of the CTBR is that it clearly delineates the Fair Use rights of consumers. The pitfall, however, is that it does not expand or restrict any current law. It makes no real modifications, and this is problematic because some of the rights listed are exactly those that give rise to the digital and legal loopholes that functionally permit rampant infringement. The CTBR makes no argument, and, moreover, presupposes all the major points of contention for the parties involved.

3. H.R. 5522 Digital Choice and Freedom Act of 2002

The Digital Choice and Freedom Act ("DCFA") (155) is like the CTBR in that it addresses statutory Fair Use rights with respect to digital and electronic multimedia works. The DCFA, however, makes sweeping change compared to the relatively meek CTBR. Introduced by Representative Zoe Lofgren of California, where the DeLise (156) action occurred, the DCFA is currently under review by the House Subcommittee on Courts, the Internet, and Intellectual Property.

The bill's strong language predates some of the controversial elements of the Rep. Boucher's DMCRA, such as the right to circumvent copyright protection technologies provided that no infringement occurs) (157) It also incorporates the archiving rights of the CTBR. (158) Beyond these provisions, the DCFA includes a "digital first sale" right, whereby a person may make a digital copy of a copyrighted work and sell it, provided that the original copy is destroyed. (159) Again, this is fair in theory; however, in practice, it may create a legal loophole for infringement.

One of the strengths of this bill, from a legal standpoint, is the language in section two on Findings. (160) This section is a comprehensive narrative, utilizing a wealth of case law and references to both enacted legislation and bills under consideration. The language resembles a memorandum, and it offers a readily understood, reasonable explanation of why the provisions it recommends are necessary to protect Fair Use in the new era of digital consumption.

4. The Music Online Competition Act 0f 2001

Sponsored by Rep. Rick Boucher, author of the DMCRA, the Music Online Competition Act ("MOCA") (161) extends a number of exemptions to copyright infringement liability for online vendors with respect to digital music. A recent development in copyright law has categorized the digital transmission of a work as a version of public performance, one of the exclusive rights enjoyed by a copyright owner. (162) MOCA seeks to substantially alter this law. Representative Chris Cannon authored the bill, which is currently in the Subcommittee on Courts, the Internet, and Intellectual Property.

MOCA does not address the rights of digital music consumers as much as it does those of vendor websites. It allows for an MP3 delivery website to offer samples of music for download without infringing the copyright, provided that the samples do not exceed a limited duration. (163) MOCA also creates statutory licensing fees, (164) requires escrow accounts for copyright owners to receive royalties, (165) and creates various rules for electronic administration of music files. (166) Notably, the bill does not address peer-to-peer network file transfer, as it is now technologically impossible to incorporate MOCA's recommended accounting methods into P2Ps.

MOCA does, however, address the various styles of MP3 vendor sites, including subscription and non-subscription services. (167) The goal is to regulate and strengthen the duly licensed MP3 websites, in the hope that P2Ps will be rendered noncompetitive. For this reason, MOCA's stance is perhaps the most moderate. Instead of a technology war between the record companies and the infringing and non-infringing consuming public, MOCA seeks to turn the MP3 revolution into common capitalism, so that the online music vendor functions like the local record shop.

B. Copyright Protection-Oriented Legislation

1. S. 2048, Consumer Broadband and Digital Television Promotion Act

South Carolina Senator Fritz Hollings introduced (168) the Consumer Broadband and Digital Television Promotion Act ("CBDTP") (169) to force hardware manufacturers to include copyright protective mechanisms in their playback devices, such as compact disc players and computers. The idea is that the hackers and infringers are software-savvy, and the tools of infringement, such as the MP3 encoders and peer-to-peer networks, are all code-based. (170) Thus, if the hardware has copyright protection technology, the code writers would be flummoxed. (171) Moreover, a consumer who purchases a CD player would not likely attempt to remove the copyright protection device, for fear of mining the equipment.

The CBDTP, using the Commerce Clause as its basis for authority, would create federal regulations mandating that manufacturers include copyright protection in their products. There are two major difficulties with this bill. First, it assumes that a "reliable, renewable, resistant to attack, readily implemented, modular, extensible, not cost prohibitive" (172) copyright protection technology could be developed and implemented. This kind of technology does not currently exist. Even if all of these criteria were met, it would have to restrict itself from encroaching on Fair Use rights. Of course, the bill goes on to state that it would be unlawful to "apply a security measure that uses a standard security technology to prevent a lawful recipient from making a personal copy for lawful use," (173) running the gamut for wishful thinking at this point in time.

The second major problem is that manufacturers do not want to be regulated, and neither do the record companies. The idea of self-help is to be able to cure industry problems, such as copyright infringement, using the companies' own technological solutions. The companies that have been losing money from MP3 transfer would prefer a bill that allows them to implement their own technology on their own terms, rather than a bill, such as the CBDTP, that dictates to the comparatively unaffected hardware manufacturers.

These issues notwithstanding, the CBDTP has found a good measure of support, despite its severe and disruptive legal answer to copyright infringement. Unlike the consumer-protective bills of the preceding section, which seek to safeguard the status quo of Fair Use, the CBDTP and other industry-protective bills must use strong language and make sweeping changes to established copyright law.

2. H.R. 5211, Peer-to-Peer Piracy Prevention Act

The Peer-to-Peer Piracy Prevention Act (174) ("P2PPPA"), introduced by Rep. Howard Berman, offers the greatest allowances for copyright owners' use of self-help technology to protect against infringement. The bill would permit "disabling, interfering with, blocking, diverting, or otherwise impairing" file transfer over a peer-to-peer network, without the risk of civil or criminal liability. (175) The boundaries of such broad license would be that the protection tactics could not damage non-infringing networks, cause economic damage to non-infringers, or cause more than fifty dollars in damage to the hardware of an infringing file trader. (176) Moreover, the copyright owner must notify the Department of Justice prior to implementing the protection technology, and must provide affected file traders with the reasoning and methodology of the protection tactics once utilized. (177)

This bill is a bold affirmation of technological self-help. In his introduction, Rep. Berman announced, "[I]f someone steals your bike and brazenly stores it on their [sic] front lawn, you are allowed to trespass on that lawn to take your bike back. Why wouldn't a copyright owner be able to do the equivalent online?" (178) This mischaracterization of copyright property, as opposed to real property, underlies the entirety of the bill; the P2PPPA seems to forget that pirates and thieves are different creatures. Berman's analogy is not completely misguided, due to the billions of dollars in lost sales the recording industry accuses P2Ps to have cost them. However, Berman's initiative to treat file-swappers as harshly as burglars has made the P2PPPA the mostly widely publicized and criticized bill on the floor.

The bill's support of highly controversial monitoring and interdiction are some of its more lenient tenets; depending on statutory interpretation, it could allow for remote deletion of files, blacklisted file-sharers, and stringent criminal penalties under its catch-all provisions. (179) That the bill is open-ended and forward looking is one of its strong points, comparatively, in that any legislation on this issue will have to be flexible enough to keep up with technological advances. Otherwise, it would become as obsolete as last year's PC. The critical failing of the P2PPPA is that its radical foresight lacks anything more than the nominal failsafe. It is the Doomsday Machine of self-help copyright protection technology legislation: highly effective, but with no 'off' button. It proscribes no method for preventing draconian protection measures. This does even the playing field, but creates an environment for digital warfare.

III. THE LAW IN TUNE

While each of the aforementioned bills has its deficiencies, in totality they address nearly every critical point at this stage of technology. This conclusion argues that an ideological symmetry of the new proposals can adequately regulate this technological war, provided that an administrative body is created to oversee the implementation of a fair and balanced rule of law.

A. New Fair Use

While the concept of copyright dates as far back as Gutenberg's printing press, and can be found in the U.S. Constitution, (180) the idea of Fair Use was statutorily born in 1976 under the Copyright Act. (181) This helps to explain why Fair Use is so easily misunderstood. Music pirates treat Fair Use as free license to copyrighted works; legislators such as Rep. Berman view Fair Use as a theoretical and practical impossibility. Reading Section 107, Fair Use is "for purposes such as criticism, comment, news reporting, teaching ... scholarship, or research," (182) and cannot be considered infringement. However, cases such as Sony Corp. v. Universal City Studios, (183) which allowed television viewers to tape programs onto VCRs, indicate that Fair Use can include commercial consumption. Harper & Row Publishers v. Nation Enterprises, (184) in which the Court forbade a magazine from printing excerpts from an unpublished work in progress, determined that in deciding whether a use is fair or unfair, the key factor is not the purpose of the use in question, but rather its effect on the marketplace for the copyrighted work. Judicial, legislative, and public opinion interpretations have rendered Fair Use a muddled mess. Subsequent acts of Congress, such as the Digital Millennium Copyright Act, have done little to update or explain Fair Use. The current digital war, pitting the masses of file-traders against the recording industry and its artists, requires that Fair Use be a crystallized legal doctrine. Otherwise, Fair Use will eventually be dissolved by overzealous file-trading and extreme copyright protection.

Thus, Fair Use doctrine must be rewritten for the digital age. For starters, there must be an explicit delineation of Unfair Use. To argue that Unfair Use is all that which is not covered by Fair Use is sadly incomplete. There are far too many gray areas and borderline scenarios. Furthermore, the theory of Fair Use must not be so poorly constructed that it explodes with each new technology. At one time, recording and film industries viewed mix tapes and VCR dubs as theft. This position seems silly today. Now, however, with the high quality of digital media, the concept of MP3 trading as theft appears almost obvious, even to those who engage in the free music takings. Technology should not eradicate ideology, but rather force ideals to bend and flex to compensate for new knowledge and new possibilities. Shutting down P2Ps amounts to Luddism, (185) and allowing them to go unchecked is anarchic. Fair Use should not have to suffer these extremes.

The new Fair Use should continue to reflect the idea that free information leads to a greater, more knowledgeable, more open society. Although music is for consumption and enjoyment, it remains a force of societal change. It cannot be completely free, of course, or else the incentive to produce music is lost. It should be afforded all of the freedoms allowable, however, to maintain creation, a viable industry, and equitable marketplace. This argument was lost in Napster, (186) a decision crafted with no deference to Section 107. Fair Use is principal to the central tenets of copyright law, which exists apart from the laws of property. Intellectual property is not real property, which is why copyright law is a separate doctrine.

B. Self-Help: Protection v. Punishment

Technological self-help copyright protection is also misunderstood. To clarify the concept, a line must be drawn between self-help protection and self-help punishment. Applying the Berman metaphor, it might be said that locking up your bike from potential thieves is protective, whereas beating up the guy who stole your bike is punitive. These extremes need little treatment from the law. Strict protection produces no harm, and makes plain economic and ideological sense. Strict punishment is vigilante violence and cannot be justified under any circumstances. It is the amalgam of protection and punishment that requires normative and pragmatic legislation from the Congress. Legislation of digital self-help should reflect the same ideals that have limited real world self-help in American jurisprudence. How would we treat the bike lock that electrocutes the thief, the omnipresent video surveillance with bike-thief facial recognition, or the bike that is really a phony bike-thief bait bike that explodes when someone tries to take it for a ride? At what point does protection become punishment?

Congress is attempting to sketch this line, and the courts will eventually provide clarification. It should be drawn in such a way that future protection technologies should fall easily on one side or the other, but this is almost impossibly optimistic. Thus, this note proposes that Congress devise a solution that can keep up with development. This solution would be a technologically-advanced, federally authorized, independent administrative body that polices Fair Use and helps to protect against infringement.

C. The Digital Copyright Administration

P2P monitoring and interdiction require an independent monitor to be applied in a fair and consistent manner. Facing economic crisis, the RIAA and other like bodies are fully interested in stopping infringement, and would abuse the ability to monitor users, block off hard drives, and delete questionable files. Furthermore, Congress would be allowing an inherently corporate nongovernmental entity to access personal computers. This is unacceptable for privacy and security reasons. It is the worst and most frightening form of self-help.

In turn, a Digital Copyright Administration is needed to police the gray area between protection and punishment. Congress has been slow to react to rapid technological growth, and the common law also suffers from protracted procedure that limits its effectiveness. Thus, a Digital Copyright Administration could be comprised of software developers and officials that understand technological trends and possibilities. The various Congressional proposals, rife with political ideology, suffer from a failure to understand technology and developing capabilities. An administrative body should shape, implement, and apply the law with technological expertise and swift action.

Texas Representative Lamar Smith recently introduced three bills on the subject of digital copyright protection. The Piracy Deterrence and Education Act (187) requires that the FBI develop a program to terminate P2Ps and other arenas of infringement. The Copyright Royalty and Distribution Reform Act (188) seeks to create special Copyright Royalty Courts that adjudicate claims over royalties and adjust royalty rates to reflect the influence of factors like piracy and inflation. The Intellectual Property Protection Restoration Act (189) accuses States of violating Federal copyright with impunity and seeks to change the law to eliminate this imbalance of power. Essentially, Rep. Smith is attempting to create a Federal anti-piracy network, complete with police officers, judges, and sovereignty.

This paradigm is misguided. For one, the plan is fatally slanted towards copyright protection and enforcement, and as a result would almost certainly end Fair Use. The public would be terrified to acquire copyrighted works over the Internet, and thus, the potential for legitimate Internet industry would be crippled. Secondly, it would waste valuable government resources. FBI agents, judges, and various federal bureaus would be chasing after individual file-swappers, agile networks, and underground technological advances. Lastly, it is difficult to imagine a transmogrified version of traditional law enforcement capable of destroying widespread file-sharing. As a phenomenon, file-sharing is nascent, and will change over time. It is already rampant, and will grow with each generation raised with the web. An effective administrative body, able to protect the rights of authors and the rights of society, cannot be the copyright police. It cannot be musty old courtrooms with brand new computers. The idea is obstinately arcane.

It is critical to recognize that MP3, P2P, and self-help technological copyright protection are the elements of a conflict that will be reincarnated with each new technological development. Without an agency built to parallel the advances in technology, this conflict becomes a war between parties that are faster, stronger, and more interested than the law itself. The creation of an administrative body, as referee and moderator, will guarantee that the ideals of copyright are not usurped by digital vigilantism.

(1.) NEILSEN//NETRATINGS, Internet Application Usage Continues to Decline, According to Nielsen//Netratings, (Sept. 29, 2003), available at http://www.nielsen-netratings.com/pr/pr_030929.pdf (last visited Oct. 22, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(2.) Id.

(3.) Reuters, RIAA Suits Jam File-Sharing Traffic (Oct. 1, 2003), available at http://computercops.biz/article3415.html (last visited Nov. 13, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(4.) Id. During the same week in which the RIAA reached these settlements, it also settled with twelve people not yet sued. Id.

(5.) This program is iTunes, version 3.0.1, [c] 2002 Apple Computer, Inc.

(6.) MP3 stands for MPEG (Moving Picture Experts Group) Layer-3. See MPEG.ORG, What is MPEG?, at http://www.mpeg.org/MPEG/index.html#mpeg (last visited Nov. 17, 2003) (on file with the Rutgers Computer and Technology Law Journal); see also FRAUNHOFER IIS, Audio and Multimedia--MPEG Audio Layer-3: History, at http://www.iis.fmunhofer.de/amm/techinf/layer3/index.html#1 (last visited Nov. 17, 2003) (on file with the Rutgers Computer and Technology Law Journal). It is a compressed audio file format and is patented by the German company, Fraunhofer Gessellschaft. See generally FRAUNHOFER GESSELLSCHAFT, at http://www.fraunhofer.de/english (last visited Oct. 15, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(7.) For the purposes of this note, "store-purchased" or "store-bought" refers to any musical compact disc or other phonorecord purchased legitimately from an accredited vendor. This includes Internet and mail-order sales.

(8.) Encoding software changes Windows Audio Files ("WAV") or Audio Integrated File Format ("AIFF") files, which are created upon upload of a CD music file onto a PC, depending on the type of computer and operating system, into MP3 files. See generally Phil Kerr, The Linux MP3-HOWTO, LINUX HOW TO DOCUMENTS (Oct. 2000), at http://www.fokus.fraunhofer.de/linux/HOWTO/MP3-HOWTO.html#toc3 (last visited Nov. 13, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(9.) Depending on the amount of compression, which has some effect on the sound quality, one minute of music usually equals one megabyte of memory after compression. See id.

(10.) See id.

(11.) See Ellen Chang, et al., MP3 Compression: The Concept, DATA COMPRESSION, at http://www.stanford.edu/~udaraiSOCO/lossy/mp3/concept.htm (last visited Nov. 17, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(12.) The Napster company provided the first widely used file transfer system on the Internet. It was the corporate manifestation of the Napster software developed by Shawn Fanning. See Karl Taro, Meet the Napster, TIME MAGAZINE, Oct. 2, 2000, at 60.

(13.) Gnutella is a software program, developed by Nullsoft, that creates P2P file transfer networks for file transfer over the Internet. It was written in open-source code and has been widely copied. Some of the Gnutella clones include Acquisition and Limewire for the Macintosh operating system, and Audiogalaxy, Bearshare, Kazaa, and Morpheus for the Windows operating system. See id at 62-63.

(14.) See A & M Records v. Napster, 239 F.3d 1004, 1029 (9th Cir. 2001).

(15.) See Taro, supra note 12. The Napster database was required for file searches by users. By downloading the Napster software, a user could open up his hard drive to Napster's search engine, and could obtain illicit copies of files from other users who had similarly opened up their hard drives to Napster's engine. This is unlike P2P networks, in that the Napster company maintained centralized, human business operations to continue the web transfers. Id at 64, 66.

(16.) See id.

(17.) See id. at 62. A California Federal judge recently ruled that two of the most popular Gnutella clones, Morpheus and Grokster, are not responsible for their users' copyright infringement. Citing the great potential for non-infringing use and the modal difference between P2Ps and Napster, the court ruled that the services were more akin to the manufacturers of VCRs and tape recorders. A similar ruling emerged in a suit against the P2P Kazan in the Netherlands. See John Borland, Judge: File-swapping Tools Are Legal, CNET NEWS (Apr. 25, 2003), at http://news.com.com/2100-1027_3-998363.html (last visited Oct. 15, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(18.) See Taro, supra note 12, at 63.

(19.) See id at 62.

(20.) See Ian Taylor, Lecture 3: Gnutella, Distributed Systems Lecture at Cardiff University (2003), available at www.cs.cf.ac.uk/user/I.J.Taylor/DistributedSystems/lecture3.pdf (last visited Nov. 4, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(21.) See Taro, supra note 12, at 63.

(22.) See Steven L. Krongold, Peer-to-Peer Technology: New Challenges Facing Copyright Owners in the Digital Age, INTELLECTUAL PROPERTY TODAY, June 2001, at 24.

(23.) See id.

(24.) See id.

(25.) See id.

(26.) See John Borland, Protected CDs Quietly Slip Into Stores, CNET NEWS (July 18, 2001), at http://news.com.com/2100-1023-270164.html (last visited Oct. 15, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(27.) See CAMPAIGN FOR DIGITAL RIGHTS, Corrupt Audio Discs, Aka "Copy-Protected CDs" (2003), at http://ukcdr.org/issues/cd/quick, (last visited Nov. 14, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(28.) See id.

(29.) See, e.g., John Leyden, Marker Pens, Sticky Tape Crack Music CD Protection, THE REGISTER (May 14, 2002), at http://www.theregister.co.uk/content/54/25274.html, (crackers use marker pens and electrical tape to circumvent music disc copyright protection schemes) (last visited Nov. 3, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(30.) See Complaint, infra note 36.

(31.) See Settlement, infra note 42.

(32.) 17 U.S.C. [section] 107 (2000). The Fair Use doctrine allows a bona fide purchaser to make copies of copyrighted material for limited purposes. See id.

(33.) See CAMPAIGN FOR DIGITAL RIGHTS, Supra note 27.

(34.) See id.

(35.) See generally SUNNCOMM TECHNOLOGIES, INC., Play it Loud. Play it Legal., at http://www.sunncomm.com (last visited Nov. 20, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(36.) See Complaint for Injunctive Relief and Related Remedies Pursuant to the Unfair Business Practices Act, DeLise v. Farenheit Entm't Inc., Case No. CV 014297 (Super. Ct. Cal. Sept. 6, 2001) (hereinafter "Complaint").

(37.) See id.

(38.) See id.

(39.) See id.

(40.) See id.

(41.) See id.

(42.) Settlement Agreement, DeLise v. Farenheit Entm't, Inc., Case No. CV 014297 (Super. Ct. Cal. Feb. 11, 2002) (hereinafter "Settlement").

(43.) See id.

(44.) See id.

(45.) See id.

(46.) See id.

(47.) See id.

(48.) See Tony Smith, Anti-Rip CD System Bypassed, THE REGISTER (Jan. 8, 2001), available at http://www.theregister.co.uk/content/54/20766.html (last visited Nov. 3, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(49.) See id.

(50.) See id.

(51.) See MACROVISION, SafeAudio: The Complete Audio CD Copy Protection Solution, at http://www.macrovision.com/solutions/audio (last visited Nov. 2, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(52.) See CAMPAIGN FOR DIGITAL RIGHTS, supra note 27.

(53.) See id.

(54.) See id

(55.) Midbar was recently acquired by Macrovision. See MACROVISION, Macrovision Acquires Midbar Tech Ltd., available at http://www.macrovision.com/company/news/press/newsdetail.jsp?id=fcd2bc4a32a b09d760a512a587b38dd5 (last visited Nov. 17, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(56.) See generally MACROVISION, CDS Family, at http://www.macrovision.com/products/cds/index.shtml, (last visited Nov. 17, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(57.) See id.

(58.) MACROVISION, Music CD Copy Protection FAQ, at http://www.macrovision.com/pdfs/Music_protection_FAQ_Public_Sep2003.pdf (last visited Nov. 17, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(59.) See CDRINFO, Cactus Data Shield 200, at http:// www.cdrinfo.com/Sections/Articles/PrinterFriendly.asp?ArticleHeadline=C actus+Data+Shield+200 (last visited Nov. 17, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(60.) See id.

(61.) See id.

(62.) See James Bickers, Copy-Protected CDs: Piracy Defense or Rip-Off?, USA TODAY, June 20, 2002, available at http://www.usatoday.com/tech/news/2002/06/25/bonus-fightback.htm (last visited Oct. 16, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(63.) See MACROVISION, CDS Family, supra note 56.

(64.) See Settlement, supra note 42.

(65.) See CAMPAIGN FOR DIGITAL RIGHTS, supra note 27.

(66.) See id.

(67.) See Settlement, supra note 42.

(68.) See AUDIOVIDEO101, Digital Audio, at http://www.audiovideo101.com/dictionary/dictionary.asp?dictionaryid=138 (last visited Nov. 4, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(69.) See id.

(70.) See Bickers, supra note 62.

(71.) See Declan McCullagh, Content Spat Split on Party Lines, WIRED NEWS (Mar. 1, 2002), available at http://www.wired.com/news/politics/0,1283,50754,00.html (last visited Nov. 4, 2003) (on file with the Rutgers Computer and Technology Law Journal); see also Declan McCullagh, New Copyright Bill Heading to DC, WIRED NEWS (Sept. 7, 2001), available at http://www.wired.com/news/politics/0,1283,46655,00.html (last visited Oct. 16, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(72.) See id.

(73.) See CBDTP, infra note 169; see also DMCRA, infra note 138.

(74.) See CBDTP, infra note 169.

(75.) See DMCRA, infra note 138.

(76.) See Paul Boutin, Philips Burning on Protection, WIRED NEWS, (Feb. 4, 2002), at http://www.wired.com/news/politics/0,1283,50101,00.html (last visited Nov. 3, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(77.) See 17 U.S.C. [section] 107 (2000).

(78.) See Robert Rose, RIAA Files Suit Against Makers of Black Magic Markers at http://www.robertwrose.com/riaa.html (last visited Nov. 3, 2003) (on file with the Rutgers Computer and Technology Law Journal) (lampooning the RIAA's litigiousness).

(79.) See Boutin, supra note 76.

(80.) See Evan Hansen, Celine Dion Disc Could Crash European PCs, CNET NEWS (Apr. 5, 2002), available at http://news.zdnet.co.uk/internet/0,39020369,2107848,00.htm (last visited Nov. 3, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(81.) See 17 U.S.C. [section] 107 (2000).

(82.) See Reuters, CD Crack: Magic Marker Indeed, WIRED NEWS (May 20, 2002), available at http://www.wired.com/news/technology/0,1282,52665,00.html (last visited Nov. 3, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(83.) See id.

(84.) See, e.g., Declan McCullagh, Code-Breakers Go to Court, WIRED NEWS (June 6, 2001), available at http://www.wired.com/news/mp3/0,1285,44344,00.html (last visited Nov. 10, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(85.) See Introduction of the Peer to Peer Privacy Prevention Act, (Statement of Rep. Howard L Berman) July 25, 2002, available at http://www.house.gov/berman/floor072502.htm (last visited Nov. 4, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(86.) See Brian W. Esler, Technological Self-Help: Its Status under European Law and Implications for U.K. Law, 17th BILETA Annual Conference (Apr. 5-6, 2002), available at http://www.bileta.ac.uk/02papers/esler.html (last visited Oct. 16, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(87.) See id. (explaining digital watermarking, SDMI, SCMS, encryption, content scramble system, and DTCP).

(88.) The Mp3-Converter.com website contains a comprehensive list of various MP3 encoding software programs for the Windows platform. See MP3-CONVERTER.COM, MP3 Encoder Downloads, at http://www.mp3converter.corrdencoders/mp3_encoder downloads.htm (last visited Nov. 4, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(89.) See CAMPAIGN FOR DIGITAL RIGHTS, Supra note 27.

(90.) GIF stands for Graphics Interchange File. See Martin Reddy, 2D Bitmap Specifications, THE GRAPHICS FILE FORMATS PAGE (June 22, 1997), at http://www.dcs.ed.ac.uk/home/mxr/gfx/2d-hi.html (last visited Oct. 16, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(91.) DOC is short for document and is native to Microsoft Word.

(92.) See Michelle L. Spaulding, Copyright Protection for Music on the Move, THE BERKMAN CENTER FOR INTERNET & SOCIETY AT HARVARD LAW SCHOOL (Sept. 1999) available at http://eon.law.harvard.edu/mp3/ (last visited Oct. 16, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(93.) See Capecom, Inc., Avoiding Viruses, CAPECOMPUTING TECHNICAL SUPPORT, at http://www.cape.com/sqerl/docs/computing107-123.ccml (last visited Nov. 4, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(94.) See Esler, supra note 86.

(95.) See SECURE DIGITAL MUSIC INITIATIVE, Phase 1, at http://www.sdmi.org (last visited Oct. 15, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(96.) See Spaulding, supra note 92.

(97.) See Doug Isenberg, Digital Watermarks: New Tools for Copyright Owners and Webmasters at http://www.webreference.com/content/watermarks (last visited Nov. 4, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(98.) See id.

(99.) See Associated Press, SDMI: Quintessential Vaporware, WIRED NEWS (Apr. 29, 2002),available at http://www.wired.com/news/politics/0,1283,52163,00.html (last visited Nov. 4, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(100.) See McCullagh, Code-Breakers Go to Court, supra note 84.

(101.) See id.

(102. See id.

(103.) Since 1999, Ed Felten has been an Associate Professor of Computer Science at Princeton University.

(104.) Complaint for Felten, No. CV-01-2660; see McCullagh, supra note 84.

(105.) See McCullagh, supra note 84.

(106.) See id.

(107.) ELECTRONIC FRONTIER FOUNDATION, Security Researchers Drop Scientific Censorship Case (Feb. 6, 2002), at http://www.eff.org/IP/DMCA/Felten_v_RIAA/20020206_eff_felten_pr.html (last visited Oct. 16, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(108.) See BBC NEWS, Virus Hoax Aims to Dupe Mp3 Users (June 30, 2001), available at http://news.bbc.co.uk/1/hi/sci/tech/1415247.stm (last visited Nov. 17, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(109.) See F-SECURE, Hoax Warnings (1998), at http://www.fsecure.com/hoaxes/mp3.shtml (last visited Oct. 10, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(110.) Id.

(111.) See id.

(112.) See BBC News, supra note 108.

(113.) See id.

(114.) See id.

(115.) See Richard Menta, Malicious Mp3s? MS and Winamp Flaws Found (Dec. 19, 2002), at http://www.mp3newswire.net/stories/2002/MP3virus.html (last visited Oct. 16, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(116.) See id.

(117.) See David Kushner, Digital Decoys, IEEE SPECTRUM ONLINE (May 3, 2002), available at http://www.spectrum.ieee.org/WEBONLY/publicfeature/may03/deco.html (last visited Nov. 4, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(118.) See id.

(119.) See Brian McWilliams, NetPD: Block Napster Files, Not Users, INTERNET NEWS (May 18, 2000) at http://www.internetnews.com/ecnews/article.php/366531 (last visited Oct. 16, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(120.) See id.

(121.) See id.

(122.) See id.

(123.) Civil Action 02-MS-0323, 65 U.S.P.Q.2D (BNA) 1574 (2003).

(124.) See Amy Harmon, Verizon Ordered To Give Identity of Net Subscriber, N.Y. TIMES, Jan. 22, 2003, at C1.

(125.) See Taylor, supra note 20; see also Nelson Minar & Mare Hedlund, A Network of Peers: Peer-to-Peer Models Through the History of the Internet, in PEER-TO-PEER: HARNESSING THE BENEFITS OF DISRUPTIVE TECHNOLOGY, (Andy Oram ed., O'Reilly & Assocs., Inc. 2001).

(126.) Andy Sullivan, Record Labels Seek OK for Online Music Sabotage, REUTERS (Sept. 27, 2002), available at http://www.gse.buffalo.edu/FAS/Bromley/classes/socprac/readings/p2p_sabotage. htm (last visited Oct. 16, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(127.) See Peter Waters & Grace Chan, Argulli and Associates US P2P Piracy Prevention Bill Gives Licence to Hack (Dec. 9, 2002), available at http://www.arcullilaw.com/publications/publicationDetail.asp?pubNo=66 (last visited Oct. 16, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(128.) See Sullivan, supra note 126.

(129.) See Sorkin, infra note 132.

(130.) See Minar, supra note 125.

(131.) See, e.g., Jonathan Zittrain, Internet Points of Control, THE BERKMAN CENTER FOR INTERNET & SOCIETY AT HARVARD LAW SCHOOL (Mar. 2003), available at http://cyber.law.harvard.edu/home/uploads/202/2003-01.pdf (last visited Nov. 4, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(132.) See Andrew Ross Sorkin, Software Bullet is Sought to Kill Musical Piracy, N.Y. TIMES, May 4, 2003, at A1.

(133.) See id.

(134.) See id.

(135.) See id.

(136.) See Brendan I. Koerner, Vigilante Justice for Copyright Holders, WIRED MAGAZINE (Oct. 2002), available at http://www.wired.com/wired/archive/10.10/view.html?pg=3 (last visited Nov. 14, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(137.) H.R. 107, 108th Cong., Bill Summary & Status, Library of Congress, available at http://thomas.loc.gov/cgi-bin/bdquery (last visited Oct. 16, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(138.) Digital Media Consumers' Rights Act of 2003, H.R. 107, 108th Cong. (2003) (hereinafter "DMCRA").

(139.) Id.

(140.) Complaint, supra note 36.

(141.) H.R. 107 at [section] 3(2)(A)(ii)-(iii)(I).

(142.) See id. at [section] 3(2)(A).

(143.) See Settlement, supra note 42.

(144.) H.R. 107 at [section] 5(a).

(145.) Id. at [section] 5(b)(1).

(146.) Id.

(147.) Id. at [section] 5.

(148.) H.R. 107, Bill Summary and Status.

(149.) Consumer Technology Bill of Rights, S.J. Res. 51, 107th Cong. (2002).

(150.) Id. at [section] 3(1).

(151.) See id. at [section] 3(2).

(152.) See id. at [section] 3(3).

(153.) See id. at [section] 3(4).

(154.) See id. at [section] 3(5).

(155.) Digital Choice and Freedom Act of 2002, H.R. 5522, 107th Cong. (2002).

(156.) See Complaint, supra note 36.

(157.) H.R. 5522 at [section] 5.

(158.) See id. at [section] 3.

(159.) See id. at [section] 4.

(160.) See id. at [section] 2.

(161.) Music Online Competition Act of 2001, H.R. 2724, 107th Cong. (2001).

(162.) 17 U.S.C. [section] 101 (2003).

(163.) H.R. 2724 at [section] 2(a)(iii).

(164.) See id. at [section]4.

(165.) See id. at [section] 4(C).

(166.) See id. at [Subsection] 4-5.

(167.) See id.

(168.) H.R. 107, Bill Summary and Status.

(169.) Consumer Broadband and Digital Television Promotion Act, S. 2048, 107th Cong. (2002) (hereinafter "CBDTP").

(170.) Id. at [section] 2(16).

(171.) See id. at [section] 2(6).

(172.) Id. at 2048 [section] 3(D)(1).

(173.) Id. at [section] 3(E)(2).

(174.) H.R. 5211, 107th Cong. [section] 1 (2002).

(175.) Id.

(176.) See id.

(177.) Id.

(178.) Clyde Wayne Crews, Jr. and Adam Thierer, How Far Can Hollywood Go To Protect Copyrights? (Sept. 23, 2002), available at www.cato.org/tech/tk/020923-tk.html (last visited Nov. 3, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(179.) See generally id.

(180.) U.S. CONST., art. 1, [section] 8, cl. 8.

(181.) 17 U.S.C. [section] 106 (2000).

(182.) Id. at [section] 107.

(183.) 464 U.S. 417 (1984).

(184.) 471 U.S. 539 (1985).

(185.) "The term Luddite has been resurrected from a previous era to describe one who distrusts or fears the inevitable changes brought about by new technology." Martin Ryder, Luddism and the Neo-Luddite Reaction (Nov. 1, 2003), at http://carbon.cudenver.edu/~mryder/itc_data/luddite.html (last visited Nov. 17, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(186.) See Napster, 239 F.3d 1004.

(187.) H.R. 2517, 108th Cong. (2003).

(188.) H.R. 1417, 108th Cong. (2003).

(189.) H.R. 2344, 108th Cong. (2003).

Jacob Weiss, J.D. Candidate, May 2004, Rutgers School of Law--Newark; B.A., Philosophy, Lewis & Clark College, 2001. The author wishes to thank Judith, Jeffrey, and Rebecca Weiss, the Pozen family, Sari Weiss, David Weiss, Joseph J. Beck, Daniel Finn Metcalf and the Metcalf family, Charles D. Presley III, David Zeide, Dr. Robert Kaufman, Marc Wisel, Adam Wisel and the Wisel family, Evan Puchalsky, Bran Noonan, Evans Anyanwu, Joshua I. Sherman, the Honorable Joseph A. Greenaway, Jr., Dean Andy Rothman and the Rothman family, Joshua Dratel, Marshall Mintz, Professor John R. Kettle III, Michael Cross, Chris Lavine, Chet Schmidt, Isaac Weiss, and Dr. J. M. Fritzman. This note is dedicated to the