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How the Napster injunction and other legal decisions affect directories on the Internet
Directories are important to the Internet and decisions about Napster and other systems are setting out the duties of those that run them.
Yesterday, Judge Patel issued an injunction that told Napster what they must do with respect to protecting the rights of the music companies. I think it is worth examining the implications of this and other legal decisions that have been issued recently. They have bearing on both client-server and Peer-to-Peer systems on the Internet.

Any legal decision about Napster is important because it may relate to other directories on the Internet. To learn about directories and the Internet, read my essay "Discussion of directories on the Internet".

The Napster directory
Napster maintains a dynamic directory of the IP addresses of the users currently connected to their system, as well as a list of the names of the files each of those users offers to share. It needs the IP addresses to tell users how to connect to each other for sharing, since most user machines do not have IP address listings in other general directories. It does not host the files themselves, just information for accessing them.

In many P2P systems, there is a directory somewhere.

The legal issues
What are we learning from the legal cases being decided recently? Here's my take, as a non-lawyer:

If you control a computer, and you are put on notice by a copyright holder that you host a piece of information that infringes on their rights (or is an accessory to infringing them), then you must use reasonable efforts to remove it. You do not have to check all of your data to figure out on your own that it is non-infringing. (If you purposely posted the data to infringe, though, there may be additional liability.)

If you control a database, you are only responsible for the data in your database, not the things that data refers to that may be on other computers, unless you purposely put it there for some illegal reason.

This is very similar to the situation with ISPs, the companies that connect most people's computers to the Internet. They don't have to monitor what each of their users are doing, but when they are put on notice that one of them is doing something illegal, they may have to block their account.

This is also similar to the organizations that control highways and other thoroughfares. They don't have to check that all cars and trucks traveling on their roads have legal cargos. The post office doesn't read all mail, the phone companies don't listen to all phone calls, even though some are for illegal purposes. Only in special cases is there intervention, and then usually only for specifically indicated cars, letters, or calls.

The judge's order in the Napster case revolved around the file names, which is what Napster indexes in its directory. It does not say that Napster must upload each file and check by listening (or by using some automatic signature creator like the Broadcast Data System I describe in my EMarker essay). This matters a lot in the P2P world, as well as other uses of the Internet including the Web. If the maintainers of directories were responsible for examining the content of all the systems they listed, the burden could be enormous.

In the DeCSS case, where the court barred the 2600 web site from linking to "infringing" material, yet again it was the specific details of a specific piece of data (a link) that was consciously posted that mattered. (See the discussion by the court on page 79 of its August 30, 2000, Opinion. There's lots of material in the MPAA/DVD page of EFF's web site.) An automatic directory would have less problems here.

Even though many of the court decisions seem to be a blow against P2P and other systems, in reality it is only against certain uses that those decisions are aimed (uses that may in the end, some people argue, be found to be legal under the Constitution). In most cases so far, the actual details are such that the legal burdens on the technology will not slow its adoption in other areas. This is not an endorsement of those decisions, but a call to other judges to make sure their decisions don't inadvertently kill off whole areas of possible innovation. Because directories are so central to our use of the Internet, the points of law here could have repercussions beyond the narrow areas of entertainment.

-Dan Bricklin, 7 March 2001

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