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The state of the network : beta-testing a new governance for intellectual property Hurwitz, Darrin 1999

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THE STATE OF T H E N E T W O R K : BETA-TESTING A N E W G O V E R N A N C E FOR I N T E L L E C T U A L P R O P E R T Y  by D A R R I N HURWITZ B.A. (hons.) The University of British Columbia, 1997 A THESIS SUBMITTED IN P A R T I A L F U L F I L M E N T OF T H E REQUIREMENTS FOR THE D E G R E E OF MASTER  OF  ARTS  y  In THE F A C U L T Y OF G R A D U A T E STUDIES D E P A R T M E N T OF POLITICAL SCIENCE We accept this thesis as conforming to the required standard  T H E UNIVERSITY OF BRITISH C O L U M B I A S E P T E M B E R 1999 © Darrin Hurwitz, 1999  In presenting this thesis in partial fulfillment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission.  Department of Political Science The University of British Columbia Vancouver, Canada September 20, 1999  The State of the Network: Beta-Testing a New Governance for Intellectual Property  ii  D a r r i n Hurwitz  Abstract  Before entering the mainstream market, programs in their beta form are tested, retested, designed and re-designed; eventually, the software is released to the public where it is incorporated into the existing network infrastructure. And that is precisely what is being done by the current powers that be - the corporations - with regard to the new 'legal' norms that must be established for the realization of a commercial Internet. Corporations are today testing different implementations of code and protocols that will soon leave beta form and become the means by which the commercially viable, Ecommerce friendly Internet is governed. Buttressed by secure protocols and a corporate friendly infrastructure, the state of the global digital network as an authoritative force in the legislative and social lives of the international commons of citizens will be strong. Today the primary Internet focus of media, governments, and corporations is on intellectual property: how to regain control over digital audio, how to curb software piracy, how to develop protocols that stream high quality video over the Internet but at the same time prevent that same infrastructure from promulgating digital piracy. This paper concludes that corporations can no longer rely on the traditional state-government model to legislate and enforce digital law. Innovative, efficient, and intrusive corporate tactics designed to regain control over intellectual will form the framework for a revolutionary model of social and political governance. Vulnerable digital intellectual property will thus be the reason - perhaps excuse - corporations will use to entrench potentially oppressive rules into the next-generation worldwide network infrastructure. Protocols and codes are tremendously powerful legal enforcement mechanisms. It is far more effective to wholly eliminate the recording function from an operating system than to implement anti-piracy legislation threatening legal action in the event individuals stray. There is but one certainty in the new governance of international law: states will find a renewed sense of purpose as protectors of their citizens. Actors that protect us from information hoarding, potentially rights-infringing, protocol rich, 'big-brother' NetPowers must emerge. Ousted from making and enforcing digital laws, states must reposition themselves to safeguard our privacy, monitor and break-up rising Net-Power monopolies.  Table of Contents  ABSTRACT  C H A P T E R 1  II  1  INTRODUCTION  1  L A W S FOR T H E C O M M E R C I A L DIGITAL A G E  3  E X A M P L E S : B R I N G I N G T H E DISCUSSION INTO T H E S O C I A L S C I E N C E S  4  SETI@Home 5 Distributed.Net 7 The Private Life of the President is Catapulted through a 'grown-up', Commercialized Global Network 8 Too  P O W E R F U L TO B E IGNORED: L E A R N I N G F R O M E X A M P L E  10  A Break from Example: The Thesis C H A P T E R 2 W H O SUPPLIES T H E C O N T E N T ? W H A T R E A L L Y IS H A P P E N I N G IN C Y B E R S P A C E  A Brief History of Digital Piracy The Star Wars Dilemma: Is the Digital Force With or Against Commercialism? The Wide World of 'Warez' Trade: A Journey Online The World of Serials and Cracks Virtually Emulating Reality: Emulators and the Rampant Roms Trade  11 12 12  13 15 21 26 29  Audio's Public Domain: Digital Music A F I N A L B R A Z E N N E S S : P I R A C Y WITH ICING O N T O P C H A P T E R 3 T H E T H R E E ROUNDS OF INTERNET REGULATION: ROUNDS O N E A N D T W O C H A P T E R 4 R O U N D T H R E E : V I R T U A L INTERNATIONAL SECURITY T E C H N O L O G Y REGIMES  35 42 46 46 50 50  Beyond the Internet: The International Law of Network Sovereign [Political] Actors W3C.ORG : The World Wide Web Consortium The European Union v. United States Privacy Initiative Network Security Zones C H A P T E R 5.... CONCLUSION:  Towards a Final Beta? Beta X: In Exchange for 'Free' Intellectual Property We Invite Corporate Data Mining into Our Homes  50 51 52 53 56 56  56 56  Corporate Law Makers: Examples of a new Governance for International Law Legislating and Enforcing through Protocols and Code Code Wars: The Next Corporate Battlefield The Governance of International Law in the Digital Millennium W O R K S CITED  61 61 66 68 76  The State of the Network: Beta-Testing a New Governance for Intellectual Property  1  D a r r i n Hurwitz  Chapter 1  Introduction  To be sure, a solitary human is an impressive problem-solver and engineer. But a race of Robinson Crusoes would not give an extraterrestrial observer all that much to remark on. What is truly arresting about our kind is better captured in the story of the Tower of Babel, in which humanity, speaking a single language, came so close to reaching heaven that God himself felt threatened. A common language connects the members of a community into an information-sharing network with formidable collective powers. Anyone can benefit from the strokes of genius, lucky accidents, and trial-and-error wisdom accumulated by anyone else, present or past. And people can work in teams, their efforts coordinated by negotiated agreements.  Shares are up 1107.9% from their initial public offering in May 1998; is up 1515% from its debut in September 1998; shares are up 628% over the past year. On March 31, 1999 announced it would 2  acquire for $5.7 billion (US$) in stock. In short, Internet stocks have become the darlings of investors hoping to jump on the 'hi-tech' bandwagon that has struck the world with such phenomenal force. Companies that are able to claim even a remote link with the Internet - it might even be as simple as having that ubiquitous '.com' in the name - have just to open the sluice gates of an Initial Public Offering and the investors come flooding in. From Yahoo to Ebay, to Microsoft, RealNetworks to, the Internet today is seen as the next great medium of business. At it is here, where traditional business models and commercial mediums are  1  2  Steven Pinker, 77;e Language Instinct (New York: W. Morrow and Co, 1994), 16. Data from [] as of March 31, 1999.  The State of the Network: Beta-Testing a New Governance for Intellectual Property  2  D a r r i n Hurwitz  being challenged and altered, a new buzzword has emerged in this game of huge potential profits. It is a term that perhaps all too easily lumps the hope brought by the Internet and digital networking with multimedia, commerce, big business, heightened international relations and global transactions - namely "e-commerce". Private investors and traditional corporations are pouring tremendous wealth into the 'e-commerce' hopefuls of the net, not for the profits they yield today but in hyped-anticipation of their future potential. But all this tumult is predicated on the idea that the Internet is indeed a viable medium for 'e-commerce'. Those pouring wealth into 'e-commerce' must assume that there either today exists or will exist laws that are able to efficiently and effectively accommodate - control - the litany of 'e-commerce's' variables. For 'e-commerce' to truly enter the mainstream marketplace there must be laws that companies can rely on, laws that individuals respect, sanctions that defectors fear. The great, now often mainstream predictions for Internet 'e-commerce' cannot be reconciled with the current norms we call domestic and international law. Pragmatically, the inertia behind the forces of Internet commercialization is anything but a phantom virtual threat - big business will sculpt the Internet into a secure, profitable medium. I ponder, though, what norms and traditional structures must be reshaped, if not destroyed, so that today's speculative stock giants are able to live up to the potential anticipated indeed required - by so many. No longer novel to International Relations is the idea of the declining hegemony of the solitary nation state. Much has been written about the increasing political and economic interdependence of states, along with the 'buzz-words' of 'permeable borders', 'decreasing autonomy', and 'erosion of sovereignty'. The reality of state interdependence  The State of the Network: Beta-Testing a New Governance for Intellectual Property Darrin Hurwitz  3  has propelled the notion of international regimes - legal, political, economic - into mainstream thought. The common variable of the state persists, however in these equations. Realist theories stress the state's primacy and hegemony while more liberal theories emphasize the waning of state autonomy, perhaps even state sovereignty, and acknowledge the increasing role of non-governmental organizations in domestic and international relations. As an observer, I see overwhelming evidence that the forces of Internet commercialization must look to International Legal Regimes for the stability, predictability, and efficiency demanded by the commercial forces of the Internet era. But I cannot envision how states can realistically play a significant role in these regimes that must now dictate the laws of the digital age. There is today a vital role to be played by entities that are able to effectively set standards for 'e-commerce', telecommunications and multimedia. In short, the commercialization of the digital age will charge forward, usurping out of necessity the state's de facto control over its ability to set and enforce so many of the crucial laws that will be important in the digital age.  Laws for the Commercial Digital Age A n assessment of the type of laws likely to emerge in the commercial digital age must begin by emphasizing the significance of digitization and its role in information transmission and reproduction. In a nutshell, most of the intellectual property that so many see as a boom for Internet 'e-commerce' can be converted into digital bytes and this is promising for holders of intellectual property. However, the same technologies that allow for information to be converted 'legitimately' also facilitate - indeed its simplicity and efficiency encourage - the illegal 'trading' of valuable bits and bytes, and this is a  The State of the Network: Beta-Testing a New Governance for Intellectual Property  4  D a r r i n Hurwitz  nightmare for holders of intellectual property. I turn to the analogy of the D N A model for assistance in stressing the importance of digitization, a model whose success stems from the perfect, 'digital' way in which information replication takes place. The D N A model represents history's most successful replication system. Copy an analog audio or video signal once and the result is somewhat acceptable; replicate this analog copy again and a progressively noticeable hiss begins to colonize the useful data on the track. Life could not replicate in this inefficient manner for the original information 'track' would soon be lost. Indeed, with each transcription of the double-helix, D N A replication is digital to the core. The Internet has been so successful as a replication medium precisely because the network is not plagued by the imperfections of analogue copying. The Internet is an interactive, decentralized replication system. Just as D N A provides a coded template for the synthesis of complex proteins, which in turn direct organic functioning, the Internet is the medium through which templates of programs are transmitted and synthesized into complex protocols and multimedia standards. Images, audio tracks, videos, software, and documents are but a handful of the many possible final synthetic products easily utilized and perfectly replicated by digital computer networks.  Examples: Bringing the Discussion into the Social Sciences  Each day millions of people log on to the Internet with newly upgraded hardware and software, systems increasingly fine-tuned to be compatible with digital networks, with 'e-commerce'. But underlying the new systems and programs must lie a design, calculations as how to best harvest the potential of digital networks. In fact, it would be  The State of the Network: Beta-Testing a New Governance for Intellectual Property  5  D a r r i n Hurwitz  foolish to expect that today's multi-billion dollar hardware and software giants do not have in-depth plans as to how they are going to reap profits from the Internet. Within this new realm shifts in political and social power must take place. And here, the thesis behind this paper emerges: the plan to commercialize digital networks can no longer rely on the traditional state-run or interstate driven legal regimes. Such claims may be a hard sell to those who today shop with ease online, purchase air-tickets, transmit Visa numbers over 'secure' channels. For them, the Internet is impressive - it works. But there is more to this story. As an introduction to the concept that the variable of the state's legal influence over the digital economy must wane, I provide three analogies: Seti@home demonstrates the tremendous power of 'benign' individual driven digital networks; Distibuted.Net illustrates just how easily the concept of distributed network sharing can traverse the 'benign' and threaten state power; finally, the Clinton-Lewinsky affair demonstrates that the Internet has 'grown-up', has been accepted as a mainstream media device for the efficient dissemination of multimedia. In all three examples, the capacity of the state to facilitate these information distribution processes is unquestionably lacking.  SETI@Home  "The Search for Extraterrestrial Intelligence (SETI) program wants you to help look for space invaders. In its hunt for alien data streams, the group is developing software and a Web site that could save money by letting netizens analyze radio signals on home computers." Seti@home represents an ambitious and powerful example of 3  Jennifer Sullivan, "Getting Some Alien Experience," Wired Magazine Online, August 3, 1998. [].  3  The State of the Network: Beta-Testing a New Governance for Intellectual Property  6  D a r r i n Hurwitz  distributed processing: Seti@home seeks to tap into the idle resources of approximately one million personal computers around the world, for the analysis of raw SETI data.  4  Simply put, Internet users now volunteer their computers during 'idle time' to run an analysis program that will perform complex number crunching. In return for sharing their computer with SETI, the computer user will benefit from an informative screen saver of a 'spinning globe' display complete with colored lights indicating the location of participating individuals and organizations, and a star map showing coverage of the frequencies surveyed. If anything 'suspicious' is detected by one of the thousands of 5  computers processing in parallel for Seti@home, the computer sends the information back to Seti scientists for closer study. By March 1999 more than 250,000 had signed up to receive notification of Seti@home's release: if these 250,000 computer users were to download and run the software (with 1000 users now being added daily), SetifSjhome would become the world's largest experiment in distributed computing.  6  Seti@home speaks volumes for the scope and power made possible through distributed networking processing. Hundreds of thousands of computers, linked by the Internet, facilitate the mass analyses of information - pattern finding - too impractical and expensive for today's supercomputers to perform. The technologies and goals behind Seti@home appear benevolent enough - individuals from around the world volunteering their computers as part of a cooperative effort to search for alien radio signals. But this is precisely where the Internet can be deceptive. Deserving great emphasis is the notion that existing technologies can be used for multiple purposes. And the Internet does not  "What is Setifgjhome?," []. Page last updated April 11, 1998. Seti(fl),home. The Philastropher, Volume 24, Number 1, October 1997. [].  4  5  The State of the Network: Beta-Testing a New Governance for Intellectual Property  7  D a r r i n Hurwitz  discriminate between that which is benevolent and that which challenges traditional power structures.  Distributed.Net  Welcome to " The Fastest Computer on Earth.... Founded to serve as a gathering point for research and projects related to distributed processing. To build up a network of computers over the Internet all coordinating on various tasks, with each computer working on the project it's best suited to." While this mission statement may 7  not appear to threaten any existing political power struggles, we only need grasp what indeed constitutes 'research' and 'projects' for to understand the widereaching implications for many existing political structures. tackles problems of complex chess moves. The group also deals with finding keys to encryption. " R S A Data Security Inc. said last night that a global team of programmers called broke a 56-bit Data Encryption Standard key in 39 days .... R S A offered a $10,000 reward to the first group to break the key as part of its DES Challenge II."  8  Over 61 quadrillion keys were scanned, or 26 trillion keys per second, before breaking the code. And if the thrill of helping to crack high-level government codes does not 9  entice enough individuals, Distributed.Net offers part of the reward for breaking such challenges to the user whose computer finds the right key.  Alan Boyle, "Search for E.T. Springs Forward," MSNBC News, March 12, 1999 []. Adan L. Beberg ( Founder),"Distributed.Net. Mission Statement," last modified April 20, 1998. Jim Kerstetter, "RSA's encryption challenge solved in 39 days," PC Week Online, February 26, 1998. []. Jim Kerstetter, "RSA's encryption challenge solved in 39 days," PC Week Online, February 26, 1998. [].  6  7  8  9  The State of the Network: Beta-Testing a New Governance for Intellectual Property  8  D a r r i n Hurwitz  Distributed.Net and Seti@home utilize the same technology to link hundreds of thousands of average computer enthusiasts. These two organizations essentially establish networks of coordinated computers across the Internet, with each computer receiving, manipulating, and transmitting information. Utilizing this method, the Distributed.Net, self-termed 'the largest computer on Earth' claims that enormous tasks may be accomplished. And tasks within this system of information sharing include distribution 10  of a variety of content throughout numerous highly sophisticated Internet based trading networks.  The Private Life of the President is Catapulted through a 'grown-up', Commercialized Global Network  While the American Presidency, the bastion of state power, was somehow humbled, somehow demoted a grade of prestige, with the exploits of its leader broadcasted around the world, the event marked the graduation of the Internet into the mainstream mature world of commercialization. And the obvious choice for class valedictorian must be multimedia - its dream of glorious future possibilities, of hopes and unstoppable goals will be heard for years, probably overstaying its welcome amongst state participants, most likely threatening the status of those states present. The September 1998 Clinton information glut conclusively demonstrated that the Internet could hold its own - it had grown up. Janet Kornblum writes:  See Our mission, last updated March 5, 1999, []  The State of the Network: Beta-Testing a New Governance for Intellectual Property  9  D a r r i n Hurwitz  ... the world was waiting for this [Starr] report, clamoring for it - queuing up in long virtual lines for the chance to get a peek. And they got it online. There was Sam Donaldson on national T V reading from a printout at a press conference with Clinton's lawyers, telling them that, no, he didn't know what page it was because he had gotten it off the Internet. There was the C N N broadcaster scrolling on a Netscape Navigator browser and reading from it, in real time. Anyone with a computer and modem and a few bucks - or a friend who is online - could read right along with her, just as anyone with a television and cable access could watch C N N . 11  And with the millions of requests for information, those skeptics predicting an Internet overload, a crash, were proven wrong - the Internet held its own. "The Web posting of special prosecutor Kenneth Starr's report caused a significant rise in Internet traffic today, but backbone providers and Internet service providers alike said the network showed no signs of buckling under the pressure." Neither did hundreds of thousands of simultaneous video feeds crash the Internet. The likes of C N N , M S N B C , ABCNews and C B S broadcasted Clinton's testimony as it was fed to them. To minimize the chance of breakdown, C N N , for example, enlisted the 13  help of Intervu,, and Real Networks,  three live-on-demand Internet  Broadcasting companies. M S N B C added extra bandwidth capacity and extra servers for 14  the event.  15  In sum, text, audio, and video were successfully multicasted in real-time  across the Internet backbone to millions of information-hungry individuals. Depending on one's connection speed, the quality of the broadcast ranged from poor to good. The lesson in this story, however, is that the media turned to the Internet to disseminate high-  Janet Kornblum, "A Reason to Go Online," C-NetNews, September, 1998m [] Paul Festa, "Net Backbones Handle Starr Traffic," CNET News, September 11, 1998, [] Many broadcasters added a several second delay was added to the satellite feed so that questionable content could be edited outfromthe final feed. See, Paul Festa, "Sites Prepare for Clinton Video," C-Net News, September 21, 1998, [] 11  12  13  14  15  The State of the Network: Beta-Testing a New Governance for Intellectual Property  10  D a r r i n Hurwitz  quality multimedia and people responded in droves : the technology was advanced, 16  cheap, accessible, and embedded.  Too Powerful to be Ignored: Learning from Example will tackle large problems in encryption, finding large prime numbers, or playing chess at a level unknown previously. Other large problems that no individual, corporation, or government could tackle alone will be started as we find larger and larger problems to tackle. With that in mind, go forth and multiply, divide, rotate, invert, and conquer. May no computer ever be idle again. 17  Whether it be a broadcast of data from one to many, from many to one, or one to one, that computers are today networked in what we now term the Internet demands that new methods to protect data must emerge. Seti@home and amass individual computers into their own giant super-computer collective. This networked architecture is powerful. As shown, the purpose and function of these networks can be as varied as the imagination of its source group. The Clinton example foreshadows perhaps the most ominous threat to the ability of the state to legislate and enforce information flows. Here, each source, whether it be C N N , M S N B C or an individual in Canada or Australia, can become a distribution source, transmitting information to client computers. If they so choose, such client computers can become a source for that very information, becoming yet another chain in the distribution game. And at present what they distribute is determined by these rogue networks of individuals, not governments, not corporations,  16  17  quality here refers to the resolution, clarity, and framerate of the audio/video content. our mission, last updated March 5, 1999, []  The State of the Network: Beta-Testing a New Governance for Intellectual Property  11  D a r r i n Hurwitz  not Microsoft, Paramount, or Sony. It is the content of these latter corporations, however, that the rogues of the Internet are distributing. There was a time where those threatened by these highly organized networks of anarchy turned to the government for help. I will demonstrate that such efforts have had and will continue to have little impact in quashing online intellectual property infringements. Corporations have now taken it upon themselves to regulate the Internet and in doing so yank government from the regulation and law making equation.  A Break from Example: The Thesis  This essay focuses specifically on the political and social implications of digital computer networks. Within this vast field of research there are numerous potential issues including privacy concerns, telecommunication and postal regulation, taxation, and currency control. With specific emphasis on intellectual property laws, this paper asks whether it might be realistic to conclude that states have now lost the ability to enforce that which they legislate? Or, to use the corollary: have those entities that previously sought state protection for their intellectual property now accepted, as seen through the maneuvering and possible re-positioning of these entities, that it is naive to think that intellectual property interests are best enforced by and through the state? After having investigated the issue of intellectual property, in lieu of the fact that the digital network is colonizing so much of what were once solid state-driven power structures, this paper will deal with broader questions of what new organizations must emerge to fill the regulatory vacuum.  The State of the Network: Beta-Testing a New Governance for Intellectual Property  12  D a r r i n Hurwitz  Chapter 2  Who Supplies the Content? What Really is Happening in Cyberspace  One day you '11 tell your kids that you used to get on the Internet through a phone line. And they '11 laugh and laugh. 18  By now, millions of individuals have experienced the amazement of sending email for the first time, of knowing that a message can be sent, instantaneously, to almost anywhere in the globe. By now, discussions of that first email message or that first crackly real-time telephone conversation in cyberspace have faded. Gone is the awe of those at the frontier, those experimenting with unstable technology, with new digital paradigms. Increasingly we all turn to the Internet for real content. And no longer satisfying is content there for the sake of demonstrating the latest multimedia protocol or web layout standard. In short, the infrastructure of the Internet is today unquestioned: we can, at the click of a mouse, get information from unlimited sources; we can, at our whim, send information to whomever we choose. Individuals now welcome the Internet and computer systems into their daily routine. The Internet has lost much of its gee-whiz hype appeal. And this is perhaps what is driving the current 'e-commerce' craze. People have accepted the Internet. Companies must now deliver the content we demand and find a way to make a buck or billions in doing so. This race is doomed, however, to suffer an early pile-up if the corporate drivers continue to rely on existing state-centric legal mechanisms to  The State of the Network: Beta-Testing a New Governance for Intellectual Property  13  D a r r i n Hurwitz  provide for and enforce a secure track for 'e-commerce'. To do so would be to rely on the race's spectators - the states -  to locate and remove all possible nails from the race-  course. Spectators only get in the way, complicate matters. Information providers have now realized the impracticality of relying on states to regulate the Internet. Information 'trading' is rampant on the Internet and state-driven legislation, either agreed to domestically or settled internationally through international legal regimes such as W.I.P.O. and implemented domestically, has not been successful. But just how toothless have current  state-led attempts  been to  control  intellectual  property  infringements on the Internet? A litmus test of such state powerlessness to enforce intellectual property law requires a study of just what is out there, what people are doing on the Internet. This method allows for an understanding of why certain approaches have been successful, why others have failed miserably, and the form future approaches must adopt. The following case study is necessary if we are to formulate some semblance of the laws that must emerge to placate the forces of commercialism and the organizations and technologies that must and will rise to meet this challenge.  A Brief History of Digital Piracy  Information piracy is not a new phenomenon -  it has plagued computer  companies for decades. The Internet brings an unprecedented level of threatened infringement to this equation. Before analyzing today's copyright nightmare, a brief description of software piracy's earlier days offers some perspective on current problems. For the software pirate, sophisticated technology, faster CPUs, better storage mediums  18  1999 Rogers @ Home Brochure advertising the Internet on Cable.  The State of the Network: Beta-Testing a New Governance for Intellectual Property  14  D a r r i n Hurwitz  and greater bandwidth, simply makes the process more practical. And as will be evident in the case study, the information pirate is now primarily the average Internet user, the individual who, thanks to technology, is able to search for, download and run a plethora of 'illegal' multimedia content from his or her desktop. In the early 1980's, with the advent of affordable personal computers such as the Commodore 64, the Amiga and the Apple He, individuals formed groups for the sole purpose of cracking, hacking, and exchanging software. To best understand the early days of software piracy, the significance of the modem cannot be understated: the 1980's saw a decrease in modem prices along with an increase in transfer capabilities. But software piracy was still relatively small in scale - trading groups were local and bandwidth was minimal. In the mid 1980's, software piracy experienced a boom with the increasing popularity of Bulletin Board systems. Individuals could now upload software to the public domain and in turn download software contributed by others. Software dedicated bulletin board systems required couriers, those people who would rack up large phone bills by placing long distance calls around the world for the sole purpose of transferring software between world-wide piracy groups. Still, most of these systems 19  remained small in scale, with transfer limits set by the number of phone lines private bulletin board operators could afford. Those systems that grew too large became easy targets for law enforcement mechanisms. A l l this time, events had been set in motion that would link computer servers of the world at bandwidths (transfer speed/capacity) far greater than any analog modem. The World Wide Web phenomenon, which began in  See Michelle Slatalla and Joshua Quittner, Masters of Deception: The Gang that Ruled Cyberspace, New York: HarperCollins Publishers, 1995, for an in-depth review of mid-1980's hacking ; indeed, those 'courier's of warez who amassed thousands of hours of long-distance telephone time so manipulated the vulnerable 1980's telephone systems that courier calls were 'unlimited' and 'free of charge' 19  The State of the Network: Beta-Testing a New Governance for Intellectual Property D a r r i n Hurwitz  IS  1993, changed the nature of software piracy - every person with a modem could become a high-speed courier of digital information. It is this legacy of the early World Wide Web, the early protocols and ease of digital distribution that is now firmly entrenched into the mainstream Internet infrastructure. It is difficult to grasp the true potential for the illegal circulation of intellectual property over the Internet. Perhaps a good place to begin is an analysis of the technological capabilities of the Internet placed within the context of software piracy requirements. As already discussed, the Internet is digital. And digital information can be easily stored on temporary and permanent computer servers around the world. There are numerous potential places of residence for these storage havens: Internet Service Provider; University Servers; company servers (sometimes the very company whose software is being freely distributed); temporary Internet address and private hard drives; the tens of thousands of news servers around the world that house Usenet newsgroups. As was the case with Bulletin Board software piracy, many of the addresses in question are private or 'elite'. But many more are freely available for public use. The advent of advanced technologies has exacerbated the problem of software piracy. In this category falls the hundreds of highly effective Internet search engines which do not discriminate between public domain sites and 'illegal' keywords, the easily accessible, easily created online information display format provided by the World Wide Web and the growth of complex, efficient and readily accessible multimedia protocols.  The Star Wars Dilemma: Is the Digital Force With or Against Commercialism?  For the Entertainment Industry to survive in the 'e-commerce' Multimedia era the favourable, business friendly forces of legal, mass-scale, organized, high-quality  The State of the Network: Beta-Testing a New Governance for Intellectual Property  16  D a r r i n Hurwitz  information distribution must quash the financially disastrous forces of illegal, massscale, organized, high quality information distribution. These forces are bafflingly similar in their means yet diametrical antagonistic in their goals. The 'battle' will be difficult. For the Internet presents the Entertainment industry with a conundrum: how are they to reap the rewards of 'legal' multimedia distribution while concomitantly assuring that no 'dark', unsanctioned forces diffuse the same information throughout their own 'private' unregulated networks? Current Internet infrastructure is not amenable to this goal. There are today protocols that stream astoundingly high-quality audio and video to eager Internet users. Such protocols are a blessing for those who have waited for technology to meet their 'e-commerce' dreams of secure multimedia distribution. But at present these protocols are not controlled by big business, by those hyped stock-giants that can merely offer a promise of profit. Indeed, many of the most efficient protocols were bom outside of Microsoft, Netscape, Paramount, and Disney. If left unchecked, no one, no government, no corporation, will control the multimedia standards upon which the future 'e-commerce' era will be based. Indeed it was this very emphasis on 'open standards', on easily accessible, uncontrollable protocols that allowed the Internet to become the powerful medium it is today. For there to be a controllable 'Commercial Internet' much has to change. And so, to step into the midst of one such battle, I now delve into the case of 'Star Wars: The Phantom Menace', a movie that opened May 19, 1999 to such incredible hype and expectations that nothing in reality could adequately deliver. But in the virtual world it has been a different story - the Internet has delivered. So much of the potentially profitable aggregation of bytes has been illegally transferred to so many, with such  The State of the Network: Beta-Testing a New Governance for Intellectual Property D a r r i n Hurwitz  17  incredible efficiency. The Net's impartiality for existing legal structures has been astounding. Such is the digital dilemma. In the case of the 'Phantom Menace', the ungovernable illegal distribution of intellectual property throughout digital networks forced its way into the mainstream Internet. epitomizes why so many have such high financial hopes for the Internet: the main page flashes links to, Episode 1 snapshots, video features, online comics, the teaser trailer video, the trailer video, the television commercial video, the music video, the commercials. Visitors are thus able to browse free information content and also make purchases online; of course, the free content is there to entice the millions who view the site to make yet more purchases and go see the movie yet again. There was tremendous hype over the debut of the 'Starwars' Trailer.  Fervor was  so high that thousands paid for entrance into the mediocre Wing Commander Movie just to see the two and a half minute 'Starwars trailer' - satisfied, the 'Starwars' fans then left the theatre. 'The Phantom Menace' trailer also debuted on the Internet.  The Internet  version of the 'Phantom Menace' trailer is stunning: the image clarity, smooth animation and CD-quality audio rivals that of the new D V D format. The trailer was initially available in three versions: 11, 13, 25 megabyte. With each step up on the data level sound and video quality improves. Apple and LucasFilms worked together to produce the trailer: Apple benefits from the mass exposure it has received for its QuickTime multimedia protocol while Lucusfilms receives a phenomenal platform through which to  See for the trailer download location. Many movie houses objected to the availability of the Trailer on the website as this, they claimed, detracted from potential ticket sales. 2 0  2 1  The State of the Network: Beta-Testing a New Governance for Intellectual Property  18  D a r r i n Hurwitz  display its content. Perhaps by no accident Apple's stock rose from a low of $35 in midApril 1999 to a high of $50 by Early May 1999. The 11 megabyte trailer can be downloaded in 40 minutes using conventional analog modem technology ; the superior quality 25 megabyte trailer is downloadable in approximately 90 minutes. Such downloads times are tedious and this is what initially prevented high quality multimedia from going mainstream on the Internet; such content did not threaten television. But high bandwidth technology has changed all this: downloading the two and a half minute trailer using a Rogers@home cable-modem or B C T E L ADSL-modem allows for practical viewing. The same high-resolution trailer 22  clip using these technologies takes approximately 2 minutes to download - faster than the time required to view the trailer, the magnitude of this throughput allows for real-time content streaming. Users impressed with the QuickTime 3.0 standard were treated to yet another innovation one week after the initial 'Starwars' trailer debut when Apple strategically released its new QuickTime 4.0 standard. The release of legitimate free upgrades, more 23  efficient protocols, is common to the Internet. This perpetual improvement has allowed WebPages to evolve from static, text-based lists into pages of multimedia-rich experiences. The Phantom Menace Trailer introduced QuickTime 4.0 to the world. Like its 3.0 counterpart, the 4.0 trailer was 25 megabytes in size: the innovation, however, was that Apple managed to improve the protocol such that the sound quality doubled from 22 kHz stereo to 44 kHz stereo (CD specification) and the video size increased substantially, making for a near D V D like experience. In sum, by continually enhancing protocols,  2 2  2 j  See and see  The State of the Network: Beta-Testing a New Governance for Intellectual Property  19  D a r r i n Hurwitz  corporations are propelling the Internet towards being a true and potentially profitable multimedia conduit. QuickTime 4.0 is an advertiser's dream: 'Starwars' has made available on the Net all of its television commercials. The music video is also online but the audio quality has been intentionally downgraded so that it does not rival C D quality. Just because those seeking to profit on the 'Starwars' soundtrack opted not to make it available in internetbased CD quality audio is by no means indicative of a lack of freely available technology to do so. Indeed, in the form of numerous different audio formats, the 'Starwars' soundtrack is available in its C D splendor on the Internet. The catch is that no royalties are being paid and intellectual property rights are now completely ignored. On the Internet, the tools that are potentially an advertiser's dream are certainly a legitimate content provider's nightmare. QuickTime 4.0 is a terrific audio/video format. Vivo active produces results similar to QuickTime. RealNetworks has billions in market valuation betting on the fact that its product will be superior to QuickTime and Vivo active. These formats are all 24  'owned' by corporations yet are freely available on the Internet. Pervading the Net is software that allows users to encode content into these formats and decode such content at will. Yet another format, mp3, is 'owned' by no one but is the cause of tremendous concern amongst audio intellectual property owners.  Together, these formats, among  others, have allowed for the unchecked distribution of the valuable bytes that make up the 'Starwars' commercial empire.  " see w w w . v i v o . c o m and  The M P 3 debate has been forced into center stage in the battle for 'control' of multimedia standards. This will be covered, in depth, in the subsequent section of the paper. 25  The State of the Network: Beta-Testing a New Governance for Intellectual Property  20  D a r r i n Hurwitz  Like the popular 1998 hit Titanic and 1999 hits the Matrix and the Mummy before it, 'Starwars: The Phantom Menace', the movie, will soon be available, free and in its entirety, online. It is difficult to say whether 'Starwars' will be available in QuickTime or Realvideo format - but it will soon make its debut. Video bootlegging is not a new phenomenon. Indeed, C N N reported May 28 that bootleg copies of 'Starwars' are available for $5 on the streets of New York.  26  The potential for such back-alley  distribution is limited. The Internet and its protocols change all this. Using the same compressed standards that the Entertainment industry now uses to stream movie trailers and soon hopes to draw on to stream pay-for-view movies, individuals on the Internet compress full-length movies into 250 megabytes - that's about 20 minutes of downloading time via cable-modem. The quality of these movies by no means rival the 'Starwars' trailer. But technologically and practically there is nothing stopping these Internet bootleg videos from equaling or surpassing the tremendous quality of the hiresolution 'Starwars' trailers. A May 28, 1999 Canadian Computer City flyer advertises the three new computer games associated with the new 'Starwars' movie - the Gungan Frontier, the 'Phantom Menace', and 'Racer' - for $69.99 per title. Alternatively, it is not uncommon for Software companies to offer their products for download via the Internet, a decryption key provided for the title upon payment. Utilizing the latest in 3D programming techniques, these games are spectacular and not surprisingly the demand for these titles is huge. Likewise, the demand within the brazenly obvious Internet software 'underground' circles is equally as high. The choice is up to the consumer: pay $69.99 per title or simply download the software from one of the numerous and multiplying 'mirror' sites through  2 6  Rob Lenihan, "Phantoms menace 'Star wars', "CNN Interactive, May 28, 1999, [].  The State of the Network: Beta-Testing a New Governance for Intellectual Property  21  D a r r i n Hurwitz  the Internet. V i a cable modem each game, conveniently compressed utilizing any one of a multitude of highly efficient, freely available compression algorithms, can be downloaded in approximately 6 minutes.  27  The same technology used to legitimately  send software to a paying user is currently being used to send software to millions of free riding 'defectors'. That this latter choice breaks the law is unquestionable; that no one really seems to care about this technicality is equally obvious on the Net. Software piracy is not new - what is startling is the efficiency and pervasiveness the Internet has brought to its practice. The 'Starwars' soundtrack can be purchased for approximately $15.99 from any number of music stores. The complete 'Starwars' soundtrack is downloadable from a number of Internet sites, free of charge. The most popular format for this highly compressed C D quality audio is the open standard of mp3. The 74 minute soundtrack can be downloaded in its entirety, via cable-modem, in approximately 5 minutes.  The Wide World of 'Warez' Trade: A Journey Online  A l l this talk of illegally distributed intellectual property inhabiting the Internet, but where is it? The 'Starwars' example discusses many of the possible forms such digital piracy can take - it is but one example of many. The following is an academically motivated 'Brief guide to digital piracy on the Internet'. One place to start looking for illegally distributed intellectual property is with search engines, those web sites worth billions in market evaluation. Apparently unable or unwilling to take on the role of 'censor', Internet Search engines rank legitimate distribution sites alongside their illegal counterparts. Many times, the 'underground' sites  2 7  This calculation assumes a typical cable modem speed of 200K/sec  22  The State of the Network: Beta-Testing a New Governance for Intellectual Property D a r r i n Hurwitz  receive the higher ranking, often because they are more popular or have a better mastery of the techniques that are required by rank assigning computerized search engines. The truth is that for those who look, and increasingly for those passively browsing the Internet, there is a haven of software pulsating through the digital network. The key word for software is 'warez': type this keyword into the popular Yahoo, AltaVista, Metacrawler, or Microsoft sponsored Hotbot search engines and thousands of hits are displayed  2 8  On this day, for example, Altavista returns 943210 Web pages after I enter  'warez' as a query.  29  Of course, not all of these pages will work, some having been  'terminated' by Internet providers - but many will yield results. Today the number one ranked site is "50 Best Warez Sites" . Other sites include "the Warez Emporium" and 30  31  'Millennium Warez' . 'Top web' sites are powerful: there is competition on the Internet 32  to gain the highest possible site ranking. And here, the question as to 'why' people bother to become virtual servers for the illegal distribution of intellectual property is, perhaps, answered. The more 'hits' a site receives the more advertising dollars that a site gets. This, in turn, allows the most popular warez sites to upgrade their systems, increase their bandwidth, and distribute yet more digital property. It is a most bizarre online world where legitimate companies pay Warez sites advertising dollars. Or perhaps it is not such a bad marketing ploy: it is not uncommon for warez sites to receive tens of thousands of 'hits' per day; each 'hit' represents one individual viewing the site, along with whatever advertisements should appear. Let's  2 9  3 0  31  j 2  See www.yalioo.eom, Searched May 30, 1999. users. atcon. com/~n ingal Is/frame. htm  The State of the Network: Beta-Testing a New Governance for Intellectual Property D a r r i n Hurwitz  23  click on one of the most popular 'top web sites', The very first information a 33  websurfer sees at T100 is the top 4 X-rated sites - while content here is questionable, these sites are legal. is paid to advertise for these x-rated sites, sites that can charge $29.95 per month for legitimate access. But moving along down the page, hundreds of 'warez' sites covet for the number one advertising spot on Today the number one spot is titled '35,000,000+ Illegal Appz - Games - X X X " : "Direct Downloads! - 40,000 applications - 35,000 Brand New Games - 100,000 Cracks & Serials - Illegal 18 year old  " . Today's number 10 ranked site boasts: "Direct 3 4  Download Archive - Warez+mp3: WinNT5, Photoshop 5, Starseige ... Apps-Gamez Downloadz, M P 3 , Crackz, Romz, Hackz, Ftpz, D D s , FREE X X X Pics, Videos". There 35  are thousands of these sites. A s an aside, that no one currently has control over the Internet, that governments can neither police nor enforce illegal Internet content is evident in the brazenly named site. Sites such as this one live as hierarchical equals alongside www.cnii.corn and Clicking on the current  #1 ranked  site,  it  is immediately  evident  why #1 today  falls to Selecting this particular site causes five 'pop-up' windows to appear in my browser. In other words, has taken the liberty of opening up another five windows in my Netscape browser, with each window counting as one hit for yet another advertising credit. Window 1 consists of yet another version of the 'Top 50 sites' theme; window 2 lists the 50 'Best MP3 sites' [audio piracy has yet to be discussed] with window 4 being a variation thereof; Window 5 lists the top Adult sites, with descriptions that suggest completely adult content, regardless of 'culture'.  j 3  3 4  See or  The State of the Network: Beta-Testing a New Governance for Intellectual Property  24  D a r r i n Hurwitz  The is designed to trick users into clicking yet more advertising links: most of the links listed as "Enter Here, Enter Direct Download Application" are deceptive portals to yet more advertising dollars. But a site cannot survive if it fails to provide real content and here eventually delivers: this time it is a small, unobtrusive link titled 'Enter Main Page' that is the 'real link'. Among the selections are 'Appz, Games, Direct Downloads" , with the reminder 36  that 'our applications, games, and direct downloads sections were updated today."  In  the Applications section all of the latest (and generally most expensive) applications are available. The list includes a scan of the box, a brief description of the software and the file-size. Today I find Painter 3d, Poser 3, RayDream Studio 5. The 24 compressed megabytes of Painter3d can be downloaded, via cable-modem, in approximately 3 minutes. Clicking on the link I find the three compressed files, which combine to form Painter3d; the page also pleads: "please Help! Us by Voting @ T50", along with advertisements for XXX-Rated sites".  Painter 3D is located on a server named  '". One possible working serial number for the downloaded file is provided on the homepage: this one happens to be "VA100RAZ000498-CELW-001". On the page is an advertisement for, a business which appears to be a legitimate website providing legitimate opportunity to purchase books: there is a members only special selections section, sales and specials of African-American books as seen on Oprah, and books dealing with the 'Star Wars: Phantom Menace' phenomenon. The odd fact is that  pays for  advertising: each referral makes to as of May 30, 1999  The State of the Network: Beta-Testing a New Governance for Intellectual Property  25  D a r r i n Hurwitz  probably net's between two and ten cents.  DoubleDay Book Club  knows, as do thousands of other legitimate sites, that advertising on warez sites is perhaps the single best way to guarantee high advertising traffic. The web of the illegal ware trade is undoubtedly complex. If the above guide appears mind-boggling, that is because it realistically is baffling. New users are bombarded with new lingo, with pop-ups, xxx-rated content and the legal sites trying to make a buck strewn alongside their illegal web-counterparts. But lying at the end of the linked tunnels is usually the latest application or game, illegally and brazenly made available free of charge. Indeed, there is no mention of the illegality of these sites. The professional design and high-quality layout of these sites, along with the digital scans of the software and descriptions might lead a naive surfer to believe the software is for demonstration purposes. Taken further, the difference between the sites discussed above and legitimate pay-on-demand software distribution sites is usually the inclusion of a visa number prior to commencement of the download. In the world of warez, is indeed a success story. The main page has the requisite 'fake' links to rack advertisement points. Noticeable is a large banner advertisement for Sony Playstation Mod Chips, "Play Imports and C D - R Backups,". The modchip is an ingenious device that Sony Playstation users solder into their machines so that they are able to circumvent the high-level copyright protection implemented by Sony: once the mod-chip is in place users are able to duplicate Playstation games and run them in fully working condition. A n Internet controlled by no one makes widespread Mod-Chip distribution possible. Also listed is "Welcome to!", the main page writes. "Finally a  The State of the Network: Beta-Testing a New Governance for Intellectual Property  26  D a r r i n Hurwitz  complete resource for any webmaster looking to create a web page. You will find all the resources you need here." Categories on include " A l Website Sponsors: Find the best sponsors and get the information you need before you sign up!", and "Increase Website Traffic and Hits". W w w . K o is mirrored 5 times, meaning that in the event of any problem the site has 2 redundancies in the USA, one in the United Kingdom (on this particular day it is listed as 'down'), one in Canada and one in Finland. The next page lists the legitimate Internet based casino homepage of Cyberthrill as a sponsor.  The Cyberthrill  advertising program appears lucrative: "Sign up now and start receiving checks every Friday like thousands of other webmasters advertising for Cyber Thrill" . Place Cyber Thrill banner(s) on your Website and receive the Web's highest 20 cents per unique click.... Sign up other Webmasters to participate in the B A N N E R P R O G R A M and receive 2 cents for every unique click they generate. ... Cyber Thrill offers the absolutely best programs on the Web... Checks are mailed out every Friday in US$ worldwide. Minimum payment is only US$10.... Weekly reliable payments, attractive high click-through banners, state-of-the-art 24 hour access to your account status, Referral Agent programs; it all adds up to superior Advertising Program offered to you by Cyber Thrill. Sign up today, put Cyber Thrill banner(s) in your top spot(s) and receive a check in just a few days. At 20 cents a click, there is no better deal.  Among KopyKatz top games for May 30, 1999 are' Star Wars: The Phantom Menace' and 'Star Wars Racer'.  The World  39  of S e r i a l s and  Cracks  see "Make $$$ Advertising Cyber Thrill Casino, " See  The State of the Network: Beta-Testing a New Governance for Intellectual Property  27  D a r r i n Hurwitz  Most of the thousands of sites contributing to the Internet's intellectual property nightmare use buzzwords they know will entice users - of course, what lures the masses of Internet users is a nightmare for corporations. I now discuss the significance of the major terms: cracks and serials. Once again, I emphasize that to understand the future of digital communications, the future of who must emerge as the controller and manipulator of the political, economic, and social aspects of digital communications, one must understand the as of yet unchecked intellectual property free-for-all currently taking place on the Internet. One attempt by the software industry to quell the illegal distribution of software comes in the form of serial numbers. Ostensibly these strings of often alphanumeric digits register the user with the software corporation; moreover, without these serial numbers the software package will simply not install. The serial number is printed on the software package. Hundreds of thousands of serial numbers currently float freely around cyberspace. The Internet has rendered the copyright infringement preventative measures of serial numbers useless. To retrieve a serial number for literally any piece of software, a user does not even have to know the domain name of a serial-number specific homepage. Any search engine will divulge the serial information. Of course, as is usually the case on the Internet, innovations abound to aid in the digital piracy of information. Advanced serial number search engines, using the same technology as those that help locate vacation rentals and book sellers, are easily located. Most Warez homepages also provide links to these serial searches. As an example, I use Apple's new QuickTime Multimedia software. The basic QuickTime 4.0 viewer is available free-of-charge; the complex QuickTime 4.0 Pro  The State of the Network: Beta-Testing a New Governance for Intellectual Property  28  D a r r i n Hurwitz  authoring software can be upgraded for $29.95 US. Apple has chosen to use the tremendous software distribution potential of the Internet by including a 'locked' version of QuickTime 4.0 Pro within the regular QuickTime viewer. To unlock the software, a user legitimately pays Apple its fee and Apple in return gives the user a customized serial number to unlock the software. This represents the terrific 'e-commerce' software distribution potential - the future - of the industry. Using the serial search engine I am presented with a choice of either a customized serial-generator program - someone has cracked Apple's serial-generating algorithm for QuickTime 4.0 or I can simply input one of four different serial numbers provided. In sum, Apple Corporation provides the pay-on-demand software and the pay-on-demand serial number protection is rendered useless by the Internet's ability to mass distribute sought after information. Adobe Corporation's attempt to distribute demonstration software via the Internet and thereby test the Network's software distribution potential also backfired. Enter the world of Cracks: small programs that manipulate existing software, cracks render built in protection mechanisms useless. Some corporations opt to allow the download of full working versions of their software - Microsoft is one such company - only to have that software expire in 14 days, along with a built-in inability to be reinstalled. Other companies have opted for a no-save option or an inconvenient 'unregistered' logo across print-outs. Cracks render these mechanisms horribly ineffectual. In the case of Adobe Corporation the company has made available for demonstration purposes its latest software, ranging from $60 to $500. High bandwidth servers deliver the software to the masses, software that has been crippled with a no-save feature. In this method, popular  The State of the Network: Beta-Testing a New Governance for Intellectual Property  29  D a r r i n Hurwitz  titles such as Adobe Streamline, Photoshop 5.0, PageMaker 6.5, PageMill 3.0 can be previewed on the Internet. Of course, individuals are supposed to purchase this software at their local computer store. Millions, however, are downloading the small crack files rippling through cyberspace: typing 'streamline' in one particular search engine not only yields more than 15 unique serial numbers for full Streamline versions but also cracks for the 'trial' version. This is likewise the case for most other Adobe software. 40  Microsoft also finds itself in the dilemma of dealing with the potentially profitable forces of Internet software distribution versus the dark forces of cracks and serials. Releasing full working versions of its popular FrontPage 97 and Publisher 97 packages, the software was supposed to expire in 30 days. Using popular search engines locating cracks for these programs is often faster than finding the main trial software program. For example a search for +crack +"Microsoft publisher" in, a Microsoft sponsored search engine, yields tens of results: the #1 ranked site contains a download of the Microsoft Publisher 97 crack. Above the Publisher crack is an all-purpose, generic 4l  'Microsoft C D Key Generator'.  Virtually  Emulating  42  Reality:  Emulators  and the Rampant  Roms  Trade  Emulation, according to the World Book Dictionary, is imitation in order to equal or excel. The incredible success of the personal computer is perhaps best explained by 43  4 0 41  4 2  4 j  See last accessed May 30, 1999 last accessed May 30, 1999, last accessed May 30, 1999 "emulation," World Book Dictionary  The State of the Network: Beta-Testing a New Governance for Intellectual Property  30  D a r r i n Hurwitz  its tremendous ability to emulate. With powerful processors and advanced audio and video cards, with high bandwidth and sophisticated integration systems, computers today are able to mimic the functions of the radio, the C D player, the V C R , the D V D , the newspaper and other print media, answering machines, telephones, and mailing systems, to name a few. Indeed, computers are often able to outperform the original devices they emulate. For computers allow endless manipulation of bytes and electrons, manipulation of chips according to advanced protocols and specifications. Part of the hope and hype of the 'information superhighway' must therefore be that computer systems will be able to perform an aggregate of functions in unlimited ways. Emulation offers great prospects for both new and old media giants - but emulation's pendulum can easily and unpredictably swing in both directions. As now seems to be a typical online scenario, seemingly benign Internet uses - ie. Setifoihome - can quickly evolve to threaten entrenched power structures in the image of the example. The networking capacity of the Internet, when integrated with creative genius minds, now swiftly yanks profits and security from governments and corporations. Emulation can be a very dangerous game. "Ever since people exchanged their Pong machines for a brand new Atari 2600, there have been those who want to relive the experience of their old games without the hassle of the old machines." Emulation sites are not a new Internet phenomenon: sites 44  such as Dave' offer emulation software for classic arcade games, along with such home-based systems as the Amiga, Apple II, Atari 2600, Game Boy, Nintendo 16, Sega Genesis, Super Nintendo.  45  Roms (or Romz) for these systems are readily  available - much like Warez downloads, with Top 100, Top 50 sites, Romz are sought  "UltraHLE and Emulators," E-Gamez Features, February 15, 1999. See Dave's Video Game Classics,  The State of the Network: Beta-Testing a New Governance for Intellectual Property  31  D a r r i n Hurwitz  after entities on the Internet. For Romz are the games that fuel the emulators, games that have been exported from their seemingly secure cartridge/CD formats and  into the  domain of the Internet free-for-all. Hardware based 'Backup' systems allow for easy export of console system Romz. Before January 1999 Corporations did not seem to bother much about the online Romz trade. As a feature article in E-gamez correctly suggests "[t]he emulators were usually four years behind their target consoles. By the time a good Nintendo emulator that could handle the sound, video, and controllers was available, Nintendo no longer sold the original 8-bit N E S and had moved on to SuperNintendo. Therefore, most companies no longer had a monetary interest in their old systems ... ."  46  As has been the case with digital audio piracy and as will be the case with  software piracy, corporations initially tend to horribly underestimate the anarchic potential of individuals and the computer networks they inhabit - corporations have a lot of catching up to do.  When  Connectix  Corporation,  makers  of  the  popular  Quickcam  Videoconferencing system decided to author 'Virtual Game Station Software' for the Macintosh, they inadvertently, or perhaps inevitably, took on the Sony giant. For about $60, Connectix's Virtual Game Station emulates Sony's successful Playstation Videogame console. Indeed, purchasing Sony's hardware would no longer be a prerequisite for playing Playstation games. And the Playstation is not an outdated system it is currently Sony's money making games console flagship. In 1998 more than 50  "UltraHLE and Emulators," E-Gamez Features, February 15, 46  1999.  The State of the Network: Beta-Testing a New Governance for Intellectual Property  32  D a r r i n Hurwitz  million Playstation consoles were shipped worldwide.  47  In January 1999 Connectix  unveiled their emulation software, advertising that shipping would begin in early March. On January 27, 1999 Sony filed suit against Connectix, charging that Virtual Game Station emulation software constituted a violation of Sony's intellectual property rights. Perhaps no one was more surprised by the difficult legal battle ahead than Sony - the reality would soon set in that perhaps companies could emulate the hardware of another and do say legally. On February 5 a US District Court judge denied Sony a temporary injunction, allowing Connectix to continue shipping the Macintosh version of the 48  software.  The emulator was thus allowed onto the Net and regardless of future court  decisions, there would be no going back. In short, software, once allowed on the Net, becomes part of the public domain - it simply cannot be revoked. In late April 1999 Sony successfully won an injunction against Connectix from further distributing the emulation software. "For its part, Connectix says that the setback is 'temporary' and does not apply to the tens of thousands of units that Connectix has already shipped. ". Neither will the order, according to the company, affect plans to develop a Windows-based Playstation emulator for Microsoft  49  The laws for this case  are unclear: while Connectix admits to studying the Playstation Bios, no actual Sony code was used in the software. Furthermore, Connectix states that Sony still makes money on the games sold for their Playstation emulation software. Connectix v. Sony sheds some light on the software emulation story. It would seem that where an argument arises regarding possible intellectual property infringement See Stephanie Miles, "Judge Sides with Sony in Game Spat," CNET News, Personal Technology, April 22, 1999. Polly Sprenger, "Sony Snubbed Again by Court," Wired News, March 12, 1999. Polly Sprenger, "Sony Snubbed Again by Court," Wired News, March 12, 1999. 4 7  4 8  4 9  The State of the Network: Beta-Testing a New Governance for Intellectual Property  33  D a r r i n Hurwitz  between two United States based corporations, the state-run legal system is still somewhat desirable. Yes, Connectix's software now pervades the Internet but as of today the injunction now stands against Connectix. This battle fought in the courts is not, however, the most threatening emulation event. It is Nintendo who now finds itself in center-ring, not against corporate opponents but against two individuals - Reality Man and Epsilon - who one day decided to sit down and claim the once thought impossible holy-grail  of true Nintendo 64. Three  months of reverse-coding and two genius minds is all it took, so the story goes. The remarkable 376K emulator (downloaded in approximately 2 seconds via cable-modem), known as UltraHle, was floated for just a few hours online. The Internet has turned the brief availability of that transfer into a perpetual broadcast machine. It seems that UltraHle's creators just wished to prove a point, that the complex games machine, along with its video and sound, could be emulated. Within hours of UltreHle's release, its developers removed the program from their website citing the tremendous piracy being committed using their software. UltraHle quickly diffused into every possible Internet distribution conduit. Nintendo presumably knew the true identity of the two programmers and initially threatened to sue. Consumer-based Internet lobbying efforts soon, in part, persuaded Nintendo not to seek legal action. For individuals argued it was wrong to blame the illegal distribution of Nintendo Romz on the UltraHle emulator. Nintendo subsequently decided not to sue the two programmers but promised increased vigilance and legal action against the illegal distribution of their potential data goldmine - their Romz games cartridges.  The State of the Network: Beta-Testing a New Governance for Intellectual Property  34  D a r r i n Hurwitz  I remember the January 1999 release of UltraHle, the amazement within the emulation community, and notably, the fact that the program was only able to successfully emulate two of the most popular games: Super Mario 64 and the latest installment of Zelda. Within hours these Romz were available worldwide. As should now be expected of the Internet, hundreds of Nintendo 64 emulation sites quickly sprung up: top 10, top 2 5  50  emulation sites, top romz  51  sites, mirroring the pc-warez trade could,  within, days, be located via search engines, advertising banners, newsgroup messages. The programming finesse of UltraHle allowed for modifications and improvement to the original software. This innovation has been a corporate nightmare for Nintendo. Within days of UltraHle's release, powerful upgrade entities called initialization files emerged - these files were the result of hacker group collaboration. From the .ini file credit text file: The purpose of distributing this file is to unite the Ultra.ini patching community. I give full credit to anyone who submits a patch [upgrade for a particular game]. By fragmenting the Ultra.ini patching community it only weakens it. If you feel that something is missing from this file, please email the change only to : and I'll include them in the next official file and give you full credit. 52  As of May 31, 1999 16 .ini files have been released. Thanks to the unchecked collaboration of the Internet community UltraHle now fully supports more than 60 Nintendo games. In other words, the list of supported games is practically identical to the Nintendo 64 availability list of Rogers or Blockbuster videos. And to go along with this new support are hundreds of top Romz sites, complete with advertising, banners, credit  See Top 25 Emu and Roms, See Freeroms, See credit.txt in Ultrahle.ini file upgrades, downloadable from numberous sources including UltraHle for Dummies @ EmuHQ,  5 0  51  5 2  The State of the Network: Beta-Testing a New Governance for Intellectual Property  35  D a r r i n Hurwitz  systems, and of course bragging rights for the best, most complete Romz site. The Romz of Nintendo Corporation, one of their main revenue sources, are now freely available on the Internet. Sending Roms on demand is not a new phenomenon: Rogers tried to do it legally in the mid 1990's with some success. But the unfettered streaming of the latest games for the most advanced game consoles, not to be played on those consoles but on emulators for personal computers, must haunt Nintendo executives. Not only are Nintendo games able to run on Personal computers, but the emulator often does a better job that the original, running at higher resolutions thanks to .ini upgrades. Other corporations must wonder when it will be their turn. For now, the burden rests with LucasArts and Nintendo: The 'Phantom Menace's' Racer has just been added to UltraHle's initialization file list of 'working'. Whereas the Net shuns closed-source security mechanisms it seems to form an odd symbiosis with open-standard initiatives such as UltraHle" s initialization files. Powerful programs are created through open-standard initiatives - such programs further entrench corporate insecurity on the digital network.  53  There is little doubt that this form  of mass network collaboration whose purpose is to circumvent intellectual property protection schemes threatens corporate ability to protect from intellectual property. And until business is able to profit from digitally based intellectual property the great hopes of 'e-commerce' cannot be realized. Audio's Public Domain: Digital Music In a March 24, 1999 survey, the Recording Industry Association of America claims that MP3 files may be a contributing factor to the decline in music purchases by 15 - 24 year olds .... The continuing drop-off in the proportion of [this age group] ...  The State of the Network: Beta-Testing a New Governance for Intellectual Property  36  D a r r i n Hurwitz  once the mainstay of the market, is puzzling." The impact of the open-source mp3 54  standard cannot be underestimated. First released two years ago, mp3 has come to symbolize the traditional corporation's powerlessness over so many of their products that can so easily be converted into digital form. MP3 is short for M P E G - 1 , Audio Layer 3. Mp3 has forced the issue of the states' inability to enforce the very rules they legislate. Thanks to extensive media coverage and the ease at which individuals can now perfectly pirate audio, millions now use, or have heard of and wish to try, Mp3. Millions of Internet users today understand that the small file size of MP3 makes file uploading and downloading tolerable. A l l the while original music quality is for the most part preserved. " A n active underground sprouted up with music being traded with little regard for copyright. Of course, there are legitimate MP3 sites, but the bootleg factor has been freaking out the recording industry in a major way." As with Warez, Mp3's infest every 55  possible Internet distribution medium, along with top lists and advertisements. Left unchecked, Mp3 is the realistic face of uncontrollable video distribution a year from now. MP3's are everywhere and the average Internet user knows they are everywhere; Warez are everywhere but media coverage of this trade has not yet reached saturation levels. Perhaps the software companies would rather not let it be known that their software can be pirated over the Internet. A n analysis of MP3 is important for it depicts a digital free-for-all that today offers a strong case against the mass distribution of legal content on the future Information Superhighway.  This issue will be dealt with later in the open-source example of the Linux operating system "MP3 Cutting into Music Sales?" Wired News Online, March 24, 1999, David Tanaka, "From the Editor," Canada Computer Paper, June, 1999, 5 4  55  The State of the Network: Beta-Testing a New Governance for Intellectual Property  37  D a r r i n Hurwitz  Mp3 compresses compact disc quality audio at a ratio approximating 12:1, allowing for the mass distribution of high fidelity music over digital lines. In other words, in the time it takes to receive one second of high-quality compact disc [wave] standard audio, twelve seconds of MP3 high-quality audio is received. The compression tools are free and flow ubiquitously (and legitimately) through the Internet.  56  Hundreds of  thousands of songs now lie within the public domain. And here is the problem with the mass popularization of the tools necessary to convert intellectual property into digital bits - the songs these tools convert now pulsate through the public domain but clearly have never been placed within the public domain by the property's owners. A n oddity in this whole equation is that many of the companies viewed as 'Internet Stock darlings', as the future of 'e-commerce', provide the very tools that threaten intellectual property rights. Search engines such as Yahoo!, Infoseek, and Lycos do not differentiate between legal and illegal content - such distinction may be practically and technologically impossible. The Recording Industry Association of America recently threatened to sue one of the Internet search engine giants, Lycos, over the companies newly released custom designed mp3 search engine.  57  Companies seeking to profit from the mp3 revolution have released hardware and software to capitalize on the music protocol. Both Diamond Multimedia and Creative Labs, respective giants in the video and sound card industries, advertise portable Mp3 hardware players - the Rio and Nomad - that enable users to download MP3 content from  See ; See "R1AA Threatens to Sue Lycos over Mp3," Reuters News, March 25, 1999. Special to 5 7  The State of the Network: Beta-Testing a New Governance for Intellectual Property  38  D a r r i n Hurwitz  the Internet or to record from existing C D ' s into the device. Sam Wong Hoo, chairman 58  and CEO of Creative labs says that "The market has been waiting for Creative to 'enter' the portable digital audio category ,.."  59  On April 28, 1999 Samsung Electronics released  the 'Yepp', the world's smallest portable MP3 Player.  60  RealNetworks, which has seen its share price rise 513% over the past 52 weeks, is also seeking to capitalize on the MP3 boom.  61  RealNetwork's new version of their  popular streaming audio/video, RealPlayer Plus G2, now boasts enhanced sound and picture quality and Mp3 Support. On May 3, 1999, RealNetworks dropped what must 62  have been both a potential  boom and bombshell for the Recording Industry  establishment. "RealNetworks launches RealJukebox, Turning Internet PCs into the Best Way to Experience M u s i c . . . First complete digital music system to provide users with 63  everything needed to acquire, play, and manage their personal music collections...."  At  the same time RealNetworks announced 'overwhelming' support for RealJukeBox from more than 100 partners, including music artists, 'e-commerce' partners, security solutions, hardware vendors, music portal sites and search companies - "RealJukebox is the biggest breakthrough in music listening since the Walkman," said Rob Glaser, chairman and CEO of RealNetworks, Inc.  64  See Diamond Multimedia's Rio MP3 player at and Creative Lab's Nomad Mp3 Player at Erich Luening, "Creative's New Tune: Portable Mp3," CNET News, Personal Computing, March 5, 1999, "Samsung Electronics Launches 'Yepp', the Worlds Smallest Mp3 Player, CNET News, April 28, 1999. RealNetworks share price as of June 1, 1999 (symbol: rnwk) See Real Networks Homepage: The Home of Streaming Media, last viewed June 1, 1999, Press Release from RealNetworks, May 3, 1999, Press Release from RealNetworks, May 3, 1999, 5 9  6 0  61  6 2  6 3  6 4  The State of the Network: Beta-Testing a New Governance for Intellectual Property  39  D a r r i n Hurwitz  Software and hardware innovations have thus made the legal distribution of music possible as well as the digital piracy of that the same music simple and practical. Just as is the case with Warez, Serials, Cracks, and Roms, Mp3's are everywhere from the News Server of the University of British Columbia to Rogers@home, from file transfer sites in Sweden to Australia. Private trades are conducted through popular community creating programs such as the American Online owned ICQ.  65  Today is a typical day for the  Roger's@Home news-server: the alt.binaries.sounds.mp3 newsgroup contains about 300 new songs for May 31, 1999. Among the songs is the complete soundtrack to StarWars: The Phantom Menace; the Beetles, Beegees, and various New Age artists also feature prominently. Each song takes about 30 seconds to download using a Rogers's cablemodem. Alt.binaries.sounds.mp3 has been around for years. The power does lie with Rogers to remove this newsgroup - doing so would most likely cost Rogers many customers. But there are a myriad of other news-servers on the Internet and with the aid of mirrors and other redundancies they cannot all be controlled. At 22,000 newsgroups and counting,, for $9.95 per month, boasts one of the Internet's most comprehensive news servers. Warez, Mp3's and other illegalities can be downloaded from this Newsguy, no matter one's Internet Service Provider or geographic location.  66  What is so powerful about the Mp3 standard is that every online Internet user with a C D R O M unit becomes a potential distributor of information. And it is extremely easy to 'publish' a song on the web: record a song onto your computer - otherwise known as Digital Audio Extraction -  convert it to mp3, upload it to a worldwide server.  RealNetworks' Real Jukebox has made this easy — with the click of a few buttons, you  Mirabilis's ICQ was recently purchased by American Online for S287US. See see  The State of the Network: Beta-Testing a New Governance for Intellectual Property  40  D a r r i n Hurwitz  can now give netizens who are looking for the song you recently acquired free access to it. Online, requests for songs abound and are quickly 'filled' - it is almost like requesting a library book. And there are hundreds of thousands of individuals just waiting to share. Taken one step further, the recent popularity of C D Writers allows MP3 files, once converted to the Wave C D Audio Format, to be recorded conveniently on regular audio Compact discs. At under $2 Canadian for a blank C D recordable disc, this procedure has become more than a mere fad. Companies such as Adaptec provide sophisticated C D Duplication software; retailers such as Costco sell label makers for C D discs, giving the end product a remarkably 'professional' finish. By 2000 home, portable, and car based CD players will support direct MP3 playback. In other words, users will no longer have to convert MP3 songs into the uncompressed and inefficient C D W A V E format for playback in traditional C D systems. One standard compact disc is able to store approximately 150 mp3 songs - this compares to approximately 12 for a regular C D . Taken one step further, with DVD-writers nearing mainstream affordability  , users will  be able to store more than 4000 average C D quality songs on one disc. A n audio format known as V Q F deserves mentioning. The media has not yet caught on to the existence of V Q F - but it will. For V Q F is better than MP3. And better here means a compression ratio of 18:1 versus MP3's 12:1 - better here means more efficient piracy. Audiophiles claim that the sound quality produced by V Q F audio compression is superior to MP3. V Q F is freely available on the Net. Like MP3, when it 69  enters the Internet's audio mainstream V Q F will be included - the public will demand it  Creative Labs and Hitachi have both announced the immediate availability of DVD-Writing technology for approximately $500US. This calculation assumes that first generation DVD's store 17 gigabytes of information and that today's average CD holds 13 tracks, each approximately 5 minutes in length.  6 7  6 8  The State of the Network: Beta-Testing a New Governance for Intellectual Property  41  D a r r i n Hurwitz  - in the latest multimedia players. This was the case with MP3 and Microsoft's Mediaplayer and RealAudio's Realplayer - such will be the case with V Q F . And like MP3, V Q F currently contains no foreseeable means to limit illegal copies of CD-quality audio. The audio piracy game may have found its next generation of audio protocol and its use is controlled by no one. There have been some drastic attempts by governments to deal with the digital audio copyright crisis. "Every person who, for the purpose of trade, manufactures a blank audio recording medium in Canada or imports a blank audio recording medium into Canada (a) is liable ... to pay a levy to the collecting body on selling or otherwise disposing of those blank audio recording media in Canada." " A s soon as practicable 70  after receiving the levies paid to it, the collecting body shall distribute the levies to the collective society representing eligible authors, eligible performers and eligible makers „71  In Bill C-32 the Canadian Government seeks to impose taxes on blank recordable media: the levy would be calculated at $0.25 for each 15 minutes of analogue recording time and $0.40 for each 15 minutes of digital recording time. On average Bill C-32 would tack on $1.50 to the price of audio cassettes, $2.50 to CD-Recordables and $4.50 to a 124 minute Digital Audio Tape. Part VIII of Bill C-32, the section dealing with recordable levy, has yet to come into effect: this misguided, ill-formed section has followed a bizarre path of threatened implementation and promises of yet more study in response to public outcry. In December 1998 individuals stockpiled hundreds of thousands of Compact Disc  See Welcome to VQF: The New World of Digital Audio Bill C-32, Part VIII, Section 82, Government of Canada (Canadian Heritage) Website, []  6 9  7 0  The State of the Network: Beta-Testing a New Governance for Intellectual Property  42  D a r r i n Hurwitz  Recordables in anticipation of a January 1, 1999 price hike - stressing that more study was needed, the Canadian government said that for now there would be no tax. There is an air of resignation, of hopelessness, in Section VIII of B i l l C-32. By taxing almost all purchases of recordable media and handing over the proceeds to those hurt by digital piracy the Canadian government is, in a sense, acknowledging that it cannot control digital piracy. There is one thing government can do - tax digital piracy. Will governments soon levy a copyright tax on computer and hard-drive sales? Such taxes would be unpopular and meet with wide-scale corporate opposition. And it would not solve the problem. Section VIII will not stop piracy. Taxation is indicative that government cannot control digital piracy - only sluggishly and ineffectually respond to it.  A Final Brazenness: Piracy with Icing on Top Mp3 is but one of many standards that both offers the potential of immense capitalization for corporations and also threatens to eject them from their once secure control over their domain. High Definition video is well on its way to entering the Internet mainstream. Soon C N N and Time Magazine will write about the video bootlegs that are threatening M G M and Paramount. Take, for example, San Francisco's TranzSend corporation: the company has developed a system for delivering DVD-quality films, TV programs, or software over the Net as compressed files.  72  While this standard  purports to be secure, there are many other video protocols, which, just like M P 3 , have been released as open standards along with their compression and viewer programs.  73  Bill C-32, Part VIII, Section 84, Government of Canada (Canadian Heritage) Website, [] See Christopher Jones, "Net Video Coming of Age?" Wired News Online, March 23, 1999, []. See for RealVideo Player, for vivoactive player, for Windows Media Player.  71  7 2  73  A  The State of the Network: Beta-Testing a New Governance for Intellectual Property  43  D a r r i n Hurwitz  barrier to quality video over the Internet, and for that matter an all out 'war' of individual 'pirates' versus intellectual property holders used to be the narrow bandwidth available to users. But now, with Cable modem , A D S L , and DSL technology offering high-speed, 74  75  reasonably priced bandwidth access to individuals across North America, transfer speed is no longer an issue. Tranz-Send, for example, claims that its 2  n d  generation of video  compression technology will be able to deliver a complete D V D video across a high bandwidth Internet connection in fifteen minutes. The same newsgroups and websites that today are homes to thousands of bootleg MP3 songs also distribute full-length movies that are not yet available on videocassettes. On May 21, 1999, the current blockbusters the Matrix and the Mummy were posted on News-servers around the world, including Rogers(S>home and America Online. The anonymous poster simply said: "for the World". Requests for Music videos are quickly filled - Shania Twain seems to be very popular at the moment. Season Finale's in their entirety, including that for Friends and Home Improvement, are currently lurking in Newsgroups. The protocol of choice is Vivoactive's  video player - Quicktime 4.0 and  Microsoft's A v i format are quickly emerging, however, as the new standards for video distribution. It appears that what is good enough for Lucisfilms is also good enough for software pirates. Online, requests continue for 'Starwars: The Phantom Menace'. Some homepages now claim to have the video but such boasts are difficult to verify for 'server too busy, try again later' is usually the response elicited by a request for the file. The Net is a place of many ironies. In-depth descriptions of videos are legitimately available through sites seeking to cash in on advertising dollars or perhaps  7 4  7 5  See see  The State of the Network: Beta-Testing a New Governance for Intellectual Property  44  D a r r i n Hurwitz  from the movie's official web page. Full length movies are illegally downloaded from a host of servers. Warez sites abound with in-depth descriptions of the latest software, replete with Warez-dedicated search engines and other tools for finding the full-versions online.  77  And then there is in a bizarre twist, apparent  'affiliates' or 'sponsors' of the site include the current stock giants of, CDNow, and distributes the covers that were, perhaps, the last reason to purchase a legitimate copy of bootlegged intellectual property - having the original case is always nice. But now, armed with a scanner and Internet connection, thousands of users have created a database of CD-Covers. CDCoverCentral currently boasts over 4,000 high resolution colour images - both front and back - of C D software titles. Upon entering "Starwars" into the query for the internal Search engine, highresolution scans of covers from the latest Phantom Menace games, as well as the VideoCD version, are downloadable. The Video C D , of course, is a boot leg version of the 78  latest movie: most likely comprised of 2 C D ' s and 1.2 gigabytes of information, the data will soon be compressed using the Quicktime, Vivoactive, or RealNetworks standards into a more manageable 250 megabytes. There was a time when dealt with Audio C D covers, but as of late May 1999 the site operator has removed all audio covers in lieu of possible legal action threatened by the RIAA. Regardless, the idea is out there and more C D Cover sites will be created, sending thousands of copyrighted •  covers to the eagerly awaiting $300 photo-quality color printers of information pirates.  see See for descriptions of current 'warez'. See Episode 1 VCD_back.jpg For a description of Photocolor printers see Hewlett Packard's PhotoColour printer at  79  The State of the Network: Beta-Testing a New Governance for Intellectual Property  45  D a r r i n Hurwitz  In this case study I have sought to provide a realistic overview of what is really taking place online. It is an often baffling, easily confusing, online world. If there is one point to take from this section, it is that the Internet is today plagued by thousands of 'Starwars' examples. Such is the Internet and, if left to government control, such will be the face of future digital networks. For five years government has tried its legal hand at regulating content. The above graphically depicts the online world if left to government regulation. The traditional infrastructure  of state governments, with procedures,  bureaucracy and constitutional guidelines, is too static and cumbersome for the dynamic digital world. Government lacks the ability to embed protocols and security measures into computer operating systems, and next-generation hardware. Corporate reliance on government has been a disaster. With each day the illegal online trading of information gets worse. Simply put, there can be no widespread legal distribution of multimedia on the Internet, no realization of 'e-commerce' dreams, so long as corporations continue to seek government intervention in what must presently be defined as a wreck on a lawless Information Superhighway.  The State of the Network: Beta-Testing a New Governance for Intellectual Property  46  D a r r i n Hurwitz  Chapter 3 The Three Rounds of Internet Regulation: Rounds One and Two  Who should be the lawmakers? We thought about this a lot until 1789. I think cyberspace poses, if not the death of the sovereign state, at least the question of the viability of the sovereign state to make law. The timeline of attempted regulation of the Internet follows what I deem to be three distinct rounds. The third round, only recently added to my list, promises to be the most powerful. The December 1995 Time Magazine article, "Muzzling of the Internet", heralded 'Round 1' of attempted Internet regulation. Here, the Internet's adult components suddenly took center-stage in the political discourse of states. Led by the United States, many other nations jumped onto the Internet regulation bandwagon. In February 1996, the Telecommunications Act was passed by the United States Congress and Senate, and subsequently signed into law by President Clinton. By Early 1997, members of Congress, now self-admittedly better educated as to the true nature of the Internet, introduced bills that would revoke the Communications Decency Act. Senator Patrick Leahy's comment summarizes the general consensus of the time: the C D A "was unnecessary, unworkable, and - most significantly - unconstitutional."  81  To sum up thus  far: initial government emphasis was placed on the appropriateness of information content and the ability of states and parents to restrict the viewing of such information. At  Carl S. Kaplan, "Finding Government's Role in a Global Network," New York Cybertimes, July 10, 1997. Courtney Macavinta, "Bill to Nail CDA's Coffin," C-NET, February 14, 1997. [http:/].  8 0  81  The State of the Network: Beta-Testing a New Governance for Intellectual Property  47  D a r r i n Hurwitz  this stage all state eyes were on the United States and it became clear that content 82  regulation was unmanageable. Until early 1996, attempts by government to regulate the Internet met with much corporate opposition; then, something fundamentally changed within the hallways of power. Suddenly corporations found that they too had a vested interest in seeing the Internet made more secure, in taming the Net into a more commercially viable and legally sound medium. Required was a cyberspace where information flows could be made secure, by government if need be. With the view that "some members of Congress seem to be lost in cyberspace"" Congressman Rich White launched the Internet Caucus to educate Congress before it passed any other Net-related Bills. Important to realize is who advised the caucus: twenty-two companies and organizations including Netscape Communications, Microsoft, America Online A T & T , CompuServe. On behalf of Microsoft, Bill Gates took a stand against the Communications Decency Act: "Unfortunately, it means we're going to have to spend some time in Washington, D.C. In the first 15 years of Microsoft history, we never visited Washington." Between the time of the initial drafting and final signing into oblivion of 84  the C D A , something significant occurred. Not only did Gates continue to visit Washington, but in October 1997 he met with Russian Prime Minister Viktor Chernomyrdin to deal with the problem of software piracy. Three days later Philippine President Fidel Ramos said that he would meet with Gates and other leaders of the While closed-door countries such as China and Singapore initially vehemently opposed to Internet, such issues no longer get as much attention - it appears to be a moot point that if a country is to allow the Internet 'into' its borders at all, cultural censorship is unworkable. Rose Aguilar, "Congress Educates Itself about the Net," CNN Online, March 28, 1996. []. Stanton McCandlish, Electronic Frontier Foundation Online Activist, "The CDA: Has It Fallen? Can it Get Up?", [], Feb. 13, 1995. 8 2  83  8 4  The State of the Network: Beta-Testing a New Governance for Intellectual Property  48  D a r r i n Hurwitz  information technology industry to developed an Information Technology agenda for the Philippines.  85  What changed? Corporations realized that sometime in the early to mid  nineteen nineties the Internet had broken their monopoly over secure information flows. A set of established state and corporate core values were being attacked. The solution work with government. And so in 'Round Two' of government-driven Internet regulation efforts, rather than evoking potentially fickle moral and decency standards to regulate the Internet, the capitalist based economic model was seen to be incompatible with the Internet. Issues of economic and national insecurity, rather than moral arguments, were used as reasons, or perhaps excuses, to regulate the Internet. With the initial web-enthusiasm having subsided, in a strange twist of events, corporations now desperately sought government Internet intervention. The battle here was not so much about 'other' cultural values or the inability of countries to control the political information permeating their borders, as much as it was about controlling the illegal activities of 'netizens'. The Internet threatened the intellectual property rights of both Playboy and Disney. Despite the drive to regulate the Internet, as evidenced by the extensive legislative efforts of the United States Congress, the Canadian government and many other state legislatures, the availability of illegitimate data flows increased with astounding tenacity. Quantitatively, there are now more files, more songs, more programs available online than ever before. On October 28, 1998, President Clinton signed into law the 'Digital Millennium Copyright Act', to come into affect 18 months from that date: this law imposes new  See "Gates, Russian PM Meet on Piracy," Reuters, October 11, 1997 and "Gates to Meet Philippine Leader," Reuters, October 14, 1997.  85  The State of the Network: Beta-Testing a New Governance for Intellectual Property  49  D a r r i n Hurwitz  safeguards for software, music, and written works on the Net and outlaws technologies that can crack copyright protection devices. Significant is that this legislation was first introduced at the World Intellectual Property Organization' Geneva conference on Digital Information and Copyrights in December 1996. While undoubtedly a valiant effort, the Digital Millennium Copyright Act cannot begin to stem the information free-for-all that has become the Internet. There today are laws that make downloading copyrighted information illegal - but as suggested, state de facto enforcement is unworkable. I therefore classify the Digital Millennium Copyright Act as a transition between Round Two and Round Three of digital network regulation:  internationally agreed to,  corporately driven, state-implemented and enforced. But it is extremely significant that this law was decided internationally and sent to individual state legislatures for ratification and implementation. While flawed in its reliance on the state variable, such an initiative hints at what is required in Round Three of the commercially driven initiatives if there are to be effective international laws for governing the digital network. To sum up thus far: somehow, the digital information free-for-all must be curbed if the world's economies are to realize the full potential of the digital network revolution. But regulation by states, despite having the support of corporations, has been unsuccessful. Illegal information trading is rampant on the Internet. In short, traditional government structures are too static, too slow to change and adapt in the Internet world. Recent and future attempts by states, either domestically or internationally, to 'ready' the net for 'e-commerce' will not succeed - the paradigm within which states operate is incompatible with reality. The problem is evident - but what is the solution?  The State of the Network: Beta-Testing a New Governance for Intellectual Property  50  D a r r i n Hurwitz  Chapter 4  Round Three: Virtual International Security Technology Regimes Beyond the Internet: The International Law of Network Sovereign [Political] Actors  Networked communication is here to stay; the anarchic, free-for-all that today is the Internet must change. The billions of dollars invested in the Internet and the allure of future wealth speaks volumes to the necessity and inevitability of this change. Until now, the legislative battle has centered around state-centric debates over obscene versus indecent, and competing domestic ideals as to what should be 'allowed' online. Likewise, states and corporations have dabbled with jointly-sponsored legislation, trying to tame the citizens, the potential consumers of intellectual property who are attaining the valueladen products but mostly through illegitimate means. For citizens of states have also embraced this medium - and at present they outnumber governments and corporations. Digital networks empower citizens. What has emerged is a community independent of state and corporate control, a community of millions who are comfortable with the recording of audio C D ' s for friends and the exchange of computer programs. Quite simply, individuals now threaten corporate profits because they are able to duplicate valuable information, with little energy expended and with little threat of recourse. "Software piracy laws are so practically unenforceable and breaking them has become so socially acceptable that only a thin minority appears compelled, either by fear or conscience, to obey them".  John Perry Barlow, Ibid.  86  The State of the Network: Beta-Testing a New Governance for Intellectual Property  51  D a r r i n Hurwitz  And here I see evidence of a third round of Internet regulation. What differentiates Round Three from previous attempts is that companies must, and in some cases have begun, to take the law into their own hands. Big business can no longer rely on inflexible, inefficient, impotent state actors to create and enforce the laws necessitated by the digital era. As previously alluded to, the United States and other countries have implemented Intellectual Property treaties agreed to at the W.I.P.O: this is a start for a more viable model. What needs to be excised is paradigm of reliance upon the state to make and enforce the relevant laws for this digital age. Moreover, evidence suggests that international groups made up of individuals, companies, and protocol/standard setting consortiums are rushing to fill the vacuum. W3C.ORG : The World Wide Web Consortium "The W3C was founded in October 1994 to lead the World Wide Web to its full potential by developing common protocols that promote its evolution and ensure its interoperability."  87  The W3C provides a repository of information about the World Wide  Web for developers and users; reference code implementations to embody and promote standards; and various prototype and sample applications to demonstrate use of new 88  technology.  A perusal of the membership list yields hundreds of companies ranging  from Adobe to Microsoft to Xerox Corporation.  89  There are links discussing  'membership', and 'join the team'. And, of course, the main goal of specification and protocols, standard setting and discussions of future technologies can be reviewed under 'Architecture'. The Technology and Society link contains discussions, white papers and "About The World Wide Web Consortium", [], last updated March 20, 1999. Ibid. see []  8 7  8 8  8 9  The State of the Network: Beta-Testing a New Governance for Intellectual Property  52  D a r r i n Hurwitz  specifications for Digital Signature Initiatives, Privacy, Security, and 'e-commerce'. In short, is perhaps the best example of a non-state driven international initiative that exhibits incredible influence over the infrastructure of the Internet. Interestingly, it is headed by Tim Berners-Lee, the man behind HTTP, the protocol that gave life to the World Wide Web. And so in we see companies debating future protocols, individuals with a vested interest in 'e-commerce' and the greater applications of the digital network who simply no longer rely on states, either domestically or through international legislative bodies to make and enforce the laws.  The European Union v. United States Privacy Initiative  In October 1998 the European Union shocked the United States by issuing a privacy directive that would stop U.S. companies from using or accepting information from European consumers' data. Both the United States and the E.U admit to their own ineptitude insofar as enforcing any possible privacy legislation: "The U.S. says E U rules are burdensome and costly for U.S. companies and are likely to give consumers a false sense of security, because they are impossible to enforce. E U officials say U.S. selfregulatory privacy efforts do not protect consumers, because they do not' have adequate enforcement or consumer redress mechanisms." Q.E.D. In this scenario, the United 90  States is supporting industry efforts at self-regulation, including an industry directed program called BBBOnline, which requires applicant members to indicate when they  "U.S. EU still wrangling over Privacy," March 17, 1999, Bloomberg News, special to CNET.Com []  9 0  The State of the Network: Beta-Testing a New Governance for Intellectual Property  53  D a r r i n Hurwitz  gather consumers' sensitive information, how they use it, and how they protect it.  91  Internet privacy is beyond the scope of this essay. The point to take from this scenario, however, is that the most powerful state in the world, the United States, and the 15country European Union have yet to reach consensus on establishing norms or protocols for Internet privacy. Indeed, both sides have blatantly admitted they cannot deal with the problem. I B M is not holding its breath: "Aiming to allay growing fears about privacy intrusions on the Internet and to head off possible government regulations I B M Corp. has decided to pulls its Internet advertising from any Web site in the U.S. or Canada that doesn't' post clear privacy policies." It is interesting that IBM's policy is identical in 92  nature to that of the European Union's privacy directive against the United States. Perhaps it will prove to be more effective. While debate remains surrounding the merits of these respective privacy initiatives, the scenario suggests a shift in power from nations to networks. So long as states are the principal actors in international initiatives to establish international laws that pertain to the digital commons results neither concrete nor efficient will occur. Network Security Zones Microsoft Internet Explorer 5.0's security options clearly delineate the Internet into different 'zones' of activity. The company, through its interface, must be attempting to fuse order into the Net's anarchy. Explorer 5.0 allows for a 'local intranet' zone, its default setting being 'safe' browsing and still functional. The 'Internet zone' shares the same default security level as the 'local intranet', where 'unsigned ActiveX controls will not be downloaded'. And then there is the zone for 'trusted sites': "minimal safeguards  The State of the Network: Beta-Testing a New Governance for Intellectual Property  54  D a r r i n Hurwitz  and warnings are provided; most content is downloaded and run without prompts; all active content can run; appropriate for sites that you absolutely trust". At the other extreme lies 'restricted sites': self termed the least functional, many sites labeled as restricted will cease being functional, with Internet 'cookies' disabled and anything but 93  basic browsing prevented. Using Internet Explorer 5.0, the user is always reminded as to what zone he/she currently inhabits by a rather surreptitiously placed symbol at the bottom right of the screen. What is the lesson here? Microsoft, in an alliance with numerous forms of embedded technology - encryption, multimedia protocols, digital signatures, Reciprocal corporation - has quietly taken content regulation into its own hands. Mr. Gates no longer has to go to Washington. Sites deemed 'trusted' are given a higher level of access to a user's machine than the user's own local intranet system. Of course, the user, for now, is able to change these security flags - but it takes little to change the optional sliding of the bar of security from 'trusted' to 'restricted' into a restrictive, Microsoft controlled mechanism for reading a site's pre-determined security rating and acting accordingly. In conjunction with more restrictive operating systems, more secure protocols and less freedom to decide who sets the flag variables of sites, Microsoft appears to be creating 'free trade zones' for data flows, to be developing a policy of segregation separating 'us' from 'them'. And this demonstrates one possible solution to the international legal vacuum created by the digital network: an international initiative of companies, which enforces quasi-legal norms of protocol, bounded digital networks. With the integration of Microsoft's browser into its file management system, these Jon Auerbach, "IBM to Yank Ads over Privacy Rules." Ziff-David News Network, March 31, 1999, [].  9 2  The State of the Network: Beta-Testing a New Governance for Intellectual Property  55  D a r r i n Hurwitz restrictions w i l l not only  b e a p p l i e d to Internet c o n t e n t b u t l o c a l m u l t i m e d i a  other software. In this manner, c o m p a n i e s  files  and  w i l l be able to m o n i t o r a n d e n f o r c e the e a s i l y  e s t a b l i s h e d a n d u p g r a d e d r u l e s t h e y c h o o s e t o set.  Too view these options go to Tools > Internet Options > Security in the Internet Explorer 5.0 browser.  The State of the Network: Beta-Testing a New Governance for Intellectual Property Darrin  56  Hurwitz  Chapter 5  Conclusion: Towards a Final Beta?  Before entering the mainstream market, programs are tested, re-tested, designed and re-designed; eventually, the software is released to the public where it is incorporated into the existing network infrastructure. And that is precisely what is being done by the current powers that be - the corporations - with regard to the new 'legal' norms that must be established for the realization of a commercial Internet. Presented in this paper are but a few possible betas for digital based laws. Rest assured that current models will be improved,  tested,  and strengthened  so that  the ultimate  objective  of Net  commercialization is reached.  Beta  X: In Exchange  Corporate  Data  Mining  for into  'Free'  Intellectual  Property  Ne  Invite  Our Homes  If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine ; as he who lights his taper at mine, receives light without darkening me. That ideas shouldfreely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being,  The State of the Network: Beta-Testing a New Governance for Intellectual Property  57  D a r r i n Hurwitz  incapable of confinement or exclusive appropriation. Invention then cannot, in nature, be a subject of property. - Thomas Jefferson 94  The notion that people need to make money from intellectual property in order to have an incentive to innovate or make new things does not appear to be true for Linux. 95  There today is a preoccupation with how to protect intellectual property in the digital world. Lawmakers and corporations alike are creating protocols of security, standards that they believe will establish borders impermeable to information pirates. Need this offensive be the only possible beta for digital intellectual property? For if one steps back from the daily legal skirmishes on the Information Technology frontier there might well be a significant corporate-repositioning taking place, a re-evaluation of how best to go about profiting from digital network technology. Many corporations are today positioning themselves as distributors of 'free' information. Indeed, the Internet was founded on the information-wants-to-be-free tradition. There may be a return to this model with regard to content provision. If such initiatives are not driven by philanthropic motives, then perhaps practicality and consumer demand will be the impetus. The more free services - calendars, directories, email, games - a web page provides, the more time consumers will spend viewing that web page, and the more chance there is that consumers will view the advertising on that web page. Internet advertising is big business. And here we see providing 'free' highquality games with a catch - every few minutes dynamic embedded advertisements  Thomas Jefferson, quoted by John Perry Barlow, "The Economy of Ideas," Wired Collections, March 1994, [www.wired.eom/collections/online_commerce/2.03_digital_property_pr.html]  9 4  The State of the Network: Beta-Testing a New Governance for Intellectual Property Darrin  appear within their Internet games.  96  58  Hurwitz  Or how about advertisements creeping into  everyday pc-applications. "Conduscent, maker of the ad-integration technology, said it will work with Go2Net to sell advertising for placement within financial applications for PCs.... [the company] would be the first to let developers incorporate advertisements in Windows applications. AdGateway can cause adds to appear on a user's screen before, during, and after the application is used."  97  Another example is the Free-PC initiative:  "the company plans to make money by selling adds for its network of targeting advertisements that appear on the desktop of the Free-PC customers and on the free Internet  access  service,  called  FreePCNet."  98  Advertisers  on  Free-PC  include, and Hewlett-Packard. Recipients of the free PCs are selected after completing a marketing information questionnaire. The advertising that appears on a customer's PC is targeted to the customer based on the information provided. Free-PC has sent out 10,000 computer units and promises many more. 99  Microsoft's dominance over the operating system market may end with Linux, an open-source computer operating system almost 10 years old. Linux is available free-ofcharge and today offers a realistic - many claim superior - alternative to Microsoft Windows. On Linux Jared Slossberg, general counsel and vice president of business development at BitSource INC says : '"Things are shifting .... Some of us have been talking for a long time about how software is becoming the less important part, and services are beginning to become the more important part.' In the future, he predicts,  David Schumannfang, house Counsel at Linux-developer Red Hat software, as quoted by Victoria SlindFlor in "Linux May Alter IP Legal Landscape," The National Law Journal, March 8, 1999, [] See Bezerk's You Don't Know Jack (Netshow) and Acrophobia "Web Ads Invade PC Apps", Wired News Report, October 5, 1998 [] "Free-PC to send out second round of PCs," Reuters, Special to C N E T News, July 29, 1999, []  9 5  9 6  9 7  9 8  The State of the Network: Beta-Testing a New Governance for Intellectual Property  Darrin  59  Hurwitz  intellectual property lawyers will be less in demand."  100  Several well-known companies  have developed versions of their most popular products for free distribution. Corel Corporation now offers WordPerfect for Linux free; in July 1999 Oracle released a free Linux version of its popular database program. If Microsoft represents one beta of laws, zones, and restrictions through intrusive software and protocols, Linux represents the beta for an open-source, service-driven industry where intellectual property protection is not the main concern. Rather, provision of expertise - for example software support - services takes priority. While Microsoft's source-code remains under tight-secrecy, Linux's open-source development takes place on the Internet amidst mass-collaboration. Y o u cannot pirate Linux. Microsoft  is  threatened by Linux. "At Microsoft headquarters in Redmond a widely circulated internal memo shows that the software giant views Linux as a major competitive threat. Written on October 31, 1998, by a Microsoft software engineer, it warns that Linux aficionados' ability 'to collect and harness the collective IQ of thousands o f individuals across the internet is simply amazing."  101  Machines running Linux are used by the U . S . Postal  Service, I B M and Intel. Linux is free. WordPerfect for Linux is free. Many professional games and applications are today available free. Thousands of CD-quality songs are legitimately available free.  102  Complex free services abound on the Internet - Why? It would seem  that a discussion of possible solutions to the digital intellectual property quagmire must  9  7  i b i d  100  Victoria Slind-Flor, "Linux May Alter IP Legal Landscape," The National Law Journal, March 8, 1999, [] "Linux May Alter IP Legal Landscape," The National Law Journal, March 8, 1999, [] 101  The State of the Network: Beta-Testing a New Governance for Intellectual Property  60  D a r r i n Hurwitz  include the notion of free-content  in exchange for information on consumers. For  indications are that in some avenues, companies have given up control over their intellectual property and instead have shifted to the business of data mining information on the consumer using intellectual property as the lure. The Internet simply does not respond well to those who would charge for access to its content. tried it and failed; the tens of free email services, free calendars, free online greeting cards, free fax services, free homepage storage, free C N N , New York Times, Time Magazine, speak against charging for access. And when providers do attempt to provide content for a fee, cracks emerge, passwords are made available, 'warez' sites compete to see who can first provide the software, movie bootleggers fight to claim the 'release first' prize. 'Secure' protocols will emerge. Then again, with each new crack or ingenious technological security bypass released daily, legitimate content providers puzzle over the failure of their latest and greatest security mechanism. We might now be witness to the beginnings of a general corporate resignation that copyright as it was before the Internet will never be the same. Other ways must and will be found to profit from intellectual property. Enter content and service providers who, in exchange for advertising time in your brain and personal information which allows for more precise targeting and data mining of the consumer, give away information and services for 'free'. Business is today using the Internet as a bait and hook exercise: bait consumers with promises of free high-quality content, hook them with promises of yet more content in exchange for person information. Startling is that often this takes place behind the scenes unbeknownst to the user in the form of 'cookies'. Information  see ; see [free songs for Diaomond Multimedia's portable RIO MP3 Player] 102  The State of the Network: Beta-Testing a New Governance for Intellectual Property  61  D a r r i n Hurwitz  customized to the user is 'pushed' via highly customized search-pages and banneradvertisements, luring the user into a perpetual web of personal information distribution. Warez pages have taken banner adds and illegal distribution of content to the extreme but perhaps the models is not totally absurd. Internet Banner Advertiser saw its revenues double to $31 million in the second quarter of 1999 as demand for its technology rose.  Corporate Law Makers: Examples of a new Governance for International Law  Legislating  and  Enforcing  through  Protocols  and  Code  To return to the 'Starwars' multimedia initiative, the joint Apple/LucusFilm initiative to deliver high-quality trailers via the Internet contained a non-obvious security mechanism. The standard QuickTime Video Viewer  103  offered no choice of saving the  movie to disk. After viewing, the information was 'lost'.  104  Controlling the architecture  of the future digital information superhighway through protocols and standards is far more practical and effective then through state based, even state governed, legislation. Protocols and Standards enforce by disallowing infringements from the outset. State legislation threatens punishment but punishment is simply not viable when the majority of a state's population lies on the fringes of state illegality - indeed, breaking state law becomes the norm. Another scenario is Microsoft's response to the mp3 standard. "In addition to creating a new audio format to compete with MP3, Microsoft is building a sophisticated backend system into Windows 2000 that will be able to encrypt, manage, and track  103 104  See did provide an link to a fully downloadable form of the trailer but this was their choice.  The State of the Network: Beta-Testing a New Governance for Intellectual Property  62  D a r r i n Hurwitz  digital files as they are passed from one user to the next over the Net."  105  This new  format, dubbed MsAudio 4.0, will stealthily bury its way into the operating systems of the world's personal computers. The software will let content authors establish access rules that can be enforced whenever that multimedia file is transferred. Indeed, Microsoft is positioning itself well for this new round of 'regulation'. Recently, the company invested $15 million US in Reciprocal, a company specializing in digital rights management.  106  A n article on reminds us that the lack of copyright  protection hinders the growth of electronic commerce. The market's potential can only become reality if developers of Electronic Commerce systems satisfactorily address the current problems inhibiting such growth; "Companies looking to establish a presence in this market space have a number of concerns, chiefly protection of intellectual property, flexible business models, and secure transaction methods."  107  To 'satisfactorily' address  current digital regulation problems, companies have turned to nontraditional models for legal governance. Evidence, along with some creative license, suggests the formation of Network Actors, entities that are able to control individuals within their [the network's] own virtual borders. Rather than state sanctions, state police forces, and state ineffectual legislation there must be solid standards and protocols that govern user interaction. And here I posit that we will soon have to deal with notions of Network Security, or Commercial Security, just as we now discuss National and International Security. 'Network' will replace 'Nation'. Networks, bounded by protocols, will compete for their  Christopher Jones, "MS Ballyhoos Digital Audio," Wired News Online, March 17, [] See www. 105  106  1999,  The State of the Network: Beta-Testing a New Governance for Intellectual Property  63  D a r r i n Hurwitz  own security, their own monopoly of force, and their own core ideals. But this cannot go on ad infinitum - there must be alliances, standardized inter-networked protocols that become the 'law'. For now, the Internet is one large network: smaller networks such as CompuServe and America Online have all but wholly integrated themselves into the larger Internet community. These networks have now relinquished much of the control they once enjoyed over their domain. Take, for example, America Online: the company provides their own customized browser, along with its own 'safe' area for children, and 'monitored' discussion groups. But the market demanded that A O L users be set free: once an A O L user leaves the security of the network, they are free to use any browser, free to adopt any standard they so chose. But for a viable information superhighway, for a new type of Internet, one that resembles the popular 'network sovereigns' that used to be the Compuserves and America Onlines, an Inter-Networking of smaller, sovereign global networks that are each able to enforce standards and protocols on their 'citizens', must emerge. In many respects, such networks could be said to have security within their particular monopolies. Networks will set the rules of participation. Such actors, buffered by commercial-friendly protocols and standards, will be better able to set the 'rules' of 'membership'. It is likely, therefore, that governing this next-generation of Network Powers will be corporations that have the monopoly over the rule setting standards. The ability to 'expel' a member from a relatively small, manageable 'virtual sovereign network'  yields greater power than government attempts to seek out  worldwide, anonymous transgressors in a web-like haze of networked communications.  Duncan Shaw, "Security and Protection Series: Copyright Protection in the Digital World," February 1998, [ .htm]  107  The State of the Network: Beta-Testing a New Governance for Intellectual Property  64  D a r r i n Hurwitz  Already we can see such happenings when we try to connect to an online site - a paybased article service such as Lexis-Nexus or Quicklaw - that only allow select users to participate. Significant is that these services strictly set the parameters of user interaction — it is not a digital free-for-all. "[NJetworks may now even supplant substantive, national regulation with their own rules of citizenship and participation. Networks themselves take 108  on political characteristics as self-governing entities". With increased regulation of Networks follows another inevitability. Once again we risk returning to a world where core entities exert influence and control over citizen actors. There was a time when idealists thought the Internet would put an end to such political dominance. This sense of anarchy, or rather order out of network chaos, is what fueled the individual drive to embrace the Net. That said, there is nothing to stop citizens themselves from forming 'censorship free', 'anarchic' networks - indeed, the Intranet phenomenon, a smaller network linking specific computers might prove to be more popular than the Internet. The problem with citizen-driven, regulation free, network 'states' is that such entities will not be permitted access - will not have the correct passport - to enter highly controlled, corporately run, corporate friendly networks whose backbones are governed by an intellectual property friendly Rule of Law. And, despite the bad press, people want to use the latest Microsoft product, the latest browser, the latest operating system; embedded in these corporate released 'necessities' will be the new protocols and standards that allow for better governance of digital networks. Such marginalized, noncorporate networks might eventually lose the battle to more powerful, better organized, more 'glamorous' corporate networks. Eventually, one might say, these networked bound 108  Joel R. Reidenberg, "Governing Networks and Cyberspace Rule Making," Emory Law Journal. 1996.  The State of the Network: Beta-Testing a New Governance for Intellectual Property  65  D a r r i n Hurwitz  security regimes will, in a manner similar to the emergence of a homogenous state system, begin to resemble one another. For with like standards and like goals of commercialization and profit maximization, certain models will emerge as the most effective means of governance. Defectors will also emerge. The current battle over music standards offers us a glimpse o f what is certain be a future replete with battles over protocols. For those that control the protocols and software embedded in the world's microprocessors will be the de facto new legislatures and enforcers of digital law. Specifications to prevent the proliferation of illegally distributed digital music have now been adopted - but which companies will support these standards? Diamond Multimedia, makers of the portable Rio MP3 player and Creative Labs have said yes, we support the voluntary standard adopted by Secure Digital Music Initiative. Samsung, however, along with tens of other companies are not solidly behind the initiative. The Chairman of the SDMI recently conceded: "There are going to be devices that are and are not SDMI-compliant. We can't say much about non-SDMI compliant devices. It's up to the manufacturers."  109  Voluntary assumption o f industry standards will always result in defectors. If given the choice between a portable MP3 player that prevents playback of 'illegal' contact and one that allows such playback, consumers will opt for the less restrictive machine. To be successful such initiatives cannot, as is the case with SDMI,  be  voluntary. Rather, they must be forced into the world's microprocessors. In other words, either consumers must want o r need to install the latest security protocols into their systems or have those protocols installed unbeknownst to them by those powers that stand to lose the most by digital piracy. As suggested such control protocols are today  The State of the Network: Beta-Testing a New Governance for Intellectual Property  66  D a r r i n Hurwitz  installed into the world's computers via operating system upgrades, new versions of multimedia players, and 'upgraded', more efficient 'protocols'. Code Wars: The Next Corporate  Battlefield  Resembling the actions of state counterparts, Net-Powers will wage protocolwars to determine who dominates the world's network code infrastructure. In July 1999 Microsoft attempted to leap onto the Instant-Messenger bandwagon popularized by America Online's ICQ by releasing their own free-messenger service - instant messenger - that links to its America Online counterpart." There is tremendous power to be had in 0  controlling the Instant Messenger Market. For these programs allow individuals to communicate in real time over the Internet. Users, alerted when people on their lists are online, can engage in real-time chats, type and talk to one another. Instant Messengers are almost always visible on the desktop; individuals access these programs hundreds of times per day to check, check, and update themselves on the latest information. And with each access there is time to send an advertisement, time to track which websites individuals are enthusiastically sending to their friends, what software people are trading, what news people are talking about. Instant Messengers are also a potential gateway to email services. Microsoft wants to dominate this market - so does A O L . When Microsoft invaded A O L ' s home turf network a code-war erupted. "AOL  officials have cried foul and charged the software giant with a move that is akin to  hacking. Microsoft denies it hijacked anything. 'We basically used standard development procedures with their [AOL's] product to get that to integrate with ours," says lead  109  110  ibid. See ICQ's homepage at  67  The State of the Network: Beta-Testing a New Governance for Intellectual Property D a r r i n Hurwitz  product manager Deanna Sanford.... 'We're pleased that we're able to provide this benefit that consumers have been asking for.' " America Online, of course, fears that 1  Microsoft will embed Microsoft Messenger into its Windows operating system. Realistically, if Microsoft's program provides access to the America Online's user-base, people will stop downloading America Online's program and the latter will lose control over the instant-Messaging goldmine. America Online struck back. Within a day of Microsoft's Messenger release A O L blocked Microsoft users from accessing the A O L instant messenger. A day later Microsoft fought back and, in a counter-measure programming offensive re-enabled communication between the two messenger services. Noteworthy is that Microsoft had to post upgrades to its software in order to implement the A O L defeating code - computer systems had to be 'upgraded'. With the highly automated Update Feature provided in the new and 'improved' Windows 98 operating system future upgrades, when needed, may come quietly and automatically. The lesson to take from the Instant Messenger example is that there are and will continue to be competing standards and protocol. For in controlling these mechanisms an entity sets and enforces the law. American Online desires its own sovereign network entity for Instant Messaging. Microsoft, by launching messages from its own Instant Messenger sovereign network into A O L ' s turf, is conducting protocol warfare. The stakes are no less than who controls the future of real-time data communication and collaboration. In essence, the two companies are competing to see who will set the rules of membership for the power-base of digital instant messaging. Finding itself lagging in the Instant Messenger department, Microsoft has increased efforts to promote an industry standard for instant messaging - A O L , the current market leader, has refused to join this  111  Robin Lloyd, "Microsoft Instant Messenging App Sparks Code War," CNN Interactive, July 23,  1999.  The State of the Network: Beta-Testing a New Governance for Intellectual Property  68  D a r r i n Hurwitz  Instant-Messenger standards regime. "Currently, the Internet Engineering Task Force (IETF) is working on the Instant Messaging and Presence Protocol (IMPP), which should result in the interoperability of diverse instant-messaging networks. The IMPP working group is in the process this summer of hashing out the design goals for a standard, which is expected to be completed in two to four years, for instant messaging." While the //2  interoperability of an open Instant Messaging standard is preferable, there is no guarantee that the current stock giants will agree to give up their power quietly. Equilibrium in the battlefield over digital intellectual property will most likely settle between two possible extremes: draconian control mechanisms and open-source movements. Companies need control over their intellectual property. A l l the while, there will continue to be rogue individuals - even rogue companies - that challenge existing law making power structures and organizations. Today, with no established law making norms nor law enforcement mechanisms, such individuals cannot properly be termed defectors for it remains unclear just from what Internet establishment they are defecting. But, as suggested, companies will find a way to tame the Net and such defections will be found in a new breed of cracks, emulators and hardware that de-activate the norms established by 'Net-Power' regimes. Such will be the turf of future information warfare corporate police will ensure the sanctity of established network perimeters.  The Governance  of International  Law in the Digital  Millennium  Today the primary focus of media, governments, and corporations is on intellectual property: how to regain control over digital audio, how to curb software  112  Laura Kujubu and Ted Bowen, "Instant Chaos," Sci-Tech Computing, CNN, August 3,  1999,  The State of the Network: Beta-Testing a New Governance for Intellectual Property  69  D a r r i n Hurwitz  piracy, how to develop protocols that stream high quality video over the Internet but at the same time prevent that same infrastructure from promulgating digital piracy. The sophisticated corporate tactics designed to regain control over intellectual will form the framework for a revolutionary model of social and political governance. Vulnerable digital intellectual property will thus be the reason - perhaps excuse - corporations use to entrench potentially oppressive rules into the next-generation worldwide  network  infrastructure. The implications of this inevitable corporate control over digital information flows reach out beyond intellectual property. This new power arena, in which so many of the political and social power wielding infrastructures have gone digital, warrants further academic analysis. There is still much that needs to be done by states at the traditional international level; I foresee, however, that many 'other' state bastions of domestic and international regulation will soon wane at the hands of more practical and efficient network run protocols. Thus far the 'laws' discussed have dealt with content control, intellectual property regulation and secure digital content that can be traded through legitimate channels. The question of determining and enforcing whom is deemed 'legitimate' is no longer the state's to answer. Insofar as state cultural content regulation, models similar to Microsoft's zones will shift the power away from state-run content commissions, away from tariff/trade barriers setup in favour of a particular country's magazines or recording industry — network protocols will govern the digital architecture. Microsoft will have more power to limit what the Canadian public views on their Microsoft Operating Systems and Microsoft Media Players on the next generation of Information Superhighway than the Canadian government. With Email quickly replacing  []  The State of the Network: Beta-Testing a New Governance for Intellectual Property  70  D a r r i n Hurwitz  many functions of the regular postal system, who will emerge as the regulator, the legislator, for the digital postal system? If people are to rely on the email system, there needs to be protocols to authenticate and secure the world's future postal system is working on these challenges. With the rise of Internet Telephony, who will control the rules governing the world's future Internet Protocol bounded telephone (and videophone) communications system? Already the leaders in this field, Microsoft NetMeeting and Vocaltec's Internet phone allow for a common voice collaboration protocol called the h.323. Using this common standard, users are able to talk to others using a variety of Internet based telephony systems." With highly integrated home-network products touted as the next 3  'killer application', Internet Protocols will enjoy the same access as electrical outlets in the home. Internet Protocol currently pulsates into our homes via the telephone and more )  recently the cable system. Of tremendous significance is that Internet Protocol will soon be the medium through which telephone, cable, and other information sources beam into our homes. The availability of direct-connection IP (Internet Protocol) telephones as well as television quality Internet-based video speaks to such a reality.  There is also  Electronic ink, real ink on paper, which can be changed just like letters on a computer screen." E ink will make a book that looks and feels exactly like today's book, except its 4  contents can be changed by plugging into an Internet Protocol feed to download a new newspaper, book, or magazine onto the paper. States, or even international regimes of states, appear to have little control over the evolving code-based industries discussed. And what about the monetary system? 1 1 3  1 1 4  See ; "Electronic Ink Makes Real-World Debut," U S A Today, May 2, 1999, []  The State of the Network: Beta-Testing a New Governance for Intellectual  Property  71  D a r r i n Hurwitz  There are today protocols and standards established to create new 'electronic cash' standards." While these systems currently rely on the established state-centric financial 3  infrastructure, one only has to view the 'e-commerce' and architectural sections of to understand how there some day may realistically exist a credit system independent of the traditional financial system. It is feasible that online credits, a new form of currency, will soon trade online, buttressed by secure encryption standards and new transaction protocols. Who determines how much 'currency' is released? Who sets a tax rate, if any? Here, the issues raised in The New Wealth of Nations:Taxing Cyberspace are valid: "The intangible information of the new economy can be an utterance, an email message ... or a video delivered on-demand over cable. While value is created with each new information transaction, the new value or production traveling in a digital bit-stream over telecom, satellite, or cable is usually invisible, ephemeral - most often untaxable."" The data 6  from Internet-based 'e-commerce' transactions, the book or e-book buying, digitized photographs, computer software, electronic auctions, gambling, real estate sales can be stored, sent, sold virtually anywhere. With no cash, no receipts, and no paper-trail, how will taxes be collected?" Moreover, billions of dollars of potentially taxable intellectual 7  property are lost to digital piracy. It is not unfeasible that standards will arise - or perhaps one company will dominate - the area of software that monitors and calculates the appropriate taxes payable for intellectual property transactions. In The New Wealth of  See ; Arthur J. Cordell and T. Ran Ide, The New Wealth of Nations: Taxing Cyberspace (Toronto:Between the Lines, 1997), 53. Ibid, 54. 115  116  117  The State of the Network: Beta-Testing a New Governance for Intellectual Property  72  D a r r i n Hurwitz  Nations the authors posit a bit-tax for digital intellectual property.  118  This, of course,  would require a protocol-bounded, secure Internet. The role of states remains unclear in an era where the viability of the taxation system and the choice of whether to opt in or out of emerging monetary systems will not be theirs to make. And so, it would seem, that protocols and standards will become the tools - the quasi-legal mechanisms - through which the common international laws of digitization will be controlled. Protocols and codes are tremendously powerful legal enforcement mechanisms. To emphasize this point one final time, I turn to how business and governments are dealing with the Year 2000 Bug. By now the software problem is widely understood: many computers read only the final two digits of dates and in the year 2000 these computers will 'think' it is 1900. A simple and once effective process used to store only two digits for the year of birth and current year must now be changed.  119  In the same  manner, Corporations and the billions of dollars behind them have a particular view for a profitable next-generation Internet. Attempting to prepare for Y 2 K the United States congress has passed bills and held information sessions. Ultimately, however, for Y 2 K and for a viable 'e-commerce' environment, software programmers must change the code, must 'upgrade' the protocols of our computer systems. State governments cannot get inside the microprocessors that make up the Internet. State governments can neither legislate nor enforce digital information flows. Most software providers have released Y 2 K updates: some updates reside within new programs, some are optionally downloaded by users. Many Y 2 K upgrades occur  Arthur J. Cordell and T. Ran lde, The New Wealth of Nations: Taxing Cyberspace (Toronto:Between the Lines, 1997) Richard S. Rosenberg, The Social Impact of Computers 2ed (Toronto, Academic Press, Inc., 1997), 92 119  The State of the Network: Beta-Testing a New Governance for Intellectual Property D a r r i n Hurwitz  stealthily, as part of a 'service pack' or regular monthly update.  120  73  Overtly user-friendly  multimedia protocol upgrades and strong encryption systems infect computers in this same manner. When Netscape Corp. released version 4.5 of their popular Communicator browser software millions of people streamed this latest code into their computer systems. In large letters on the new Netscape interface is a "What's Related" option; millions of people use this feature daily to find sites similar to the one they are currently viewing. Indeed this feature offers an upgrade from previous versions of Netscape. But with each click on the "What's Related" icon Netscape Corporation is able to download, in its entirely, the information currently on the user's browser - this process continues for 1000 additional homepages after one click of "What's Related". Key words from this search are stored on Netscape servers to 'assist' users in feature searches and compile statistics. However "the logs of this data, when used in conjunction with cookies, could be used to build extensive dossiers of individual web users, even including their names, addresses, and telephone numbers in some cases."  121  Netscape calls this feature, the first  of many similar initiatives, "Smart Browsing". Perhaps a more appropriate name for this feature would be "Policing". The upcoming release of Microsoft Windows 2000 will include more advanced media software and more secure operating systems.  122  There is talk that the next-  generation of Windows, codenamed Millennium, will eliminate the DOS option alltogether. With the death of DOS comes one less user-interface, one less method allowing users free reign over their computers. Consumers will eagerly upgrade their machines.  1 2 0  F o r e x a m p l e see N o r t o n Inc., L i v e U p d a t e [ w w w . N o r t o n . c o m ] .  1 2 1  " W h a t ' s R e l a t e d : E v e r y t h i n g B u t Y o u r P r i v a c y , " I n t e r H a c k , O c t o b e r 1998,  "" 1 2 2  See  The State of the Network: Beta-Testing a New Governance for Intellectual Property  74  D a r r i n Hurwitz A l l the w h i l e these upgrades install corporate friendly c o d e into the w o r l d ' s  computers  t h e r e b y e n t r e n c h i n g t h e s e n e w d i g i t a l l a w s into the i n f r a s t r u c t u r e o f t h e Internet.  It  is  far m o r e  effective  to  o p e r a t i n g s y s t e m t h a n to i m p l e m e n t  event individuals  stray. W i t h  wholly  eliminate  the  recording  function  is s i m p l y  p r o t o c o l s t h e r e is n o  e x c e s s o f 100  posting  disallowed.  an  anti-piracy legislation threatening legal a c t i o n i n the  b u r e a u c r a c y o r C h a r t e r o f R i g h t s to  deal w i t h - recording, v i e w i n g certain content, n e t w o r k i n g w i t h i n d i v i d u a l s  networks  from  Locking  the world's  automobiles  from  'other'  to prohibit speeds  in  K M / h o u r w o u l d be far more effective in limiting excessive speeding than  more  speed  limits  signs.  For  automobiles  such  re-programming  is  cost-  p r o h i b i t i v e a n d t e d i o u s - f o r the Internet s u c h c o d i n g has a l r e a d y b e g u n .  T h e r e is b u t o n e c e r t a i n t y i n t h e n e w  governance  o f i n t e r n a t i o n a l l a w : states w i l l  f i n d a r e n e w e d s e n s e o f p u r p o s e as p r o t e c t o r s o f t h e i r c i t i z e n s . A c t o r s t h a t p r o t e c t u s f r o m  information  Powers  hoarding,  must  position  potentially  emerge. Ousted  rights-infringing, protocol  from  making  t h e m s e l v e s to s a f e g u a r d our  and  rich,  'big-brother' N e t -  enforcing digital laws,  privacy, monitor  and  states m u s t re-  break-up rising  Net-Power  m o n o p o l i e s . F o r l y i n g o n b o t h e x t r e m e s o f p o s s i b l e b e t a s is t h e r e a l i t y o f ' B i g  Net-Powers.  Were  concern  over  intellectual p r o p e r t y c o n t r o l to  decline  in  Brother'  favour  of  a d v e r t i s i n g a n d d a t a m i n i n g , states w o u l d h a v e to p r o t e c t t h e i r v u l n e r a b l e c i t i z e n s . W e r e  draconian  control  protocols  to  be  implemented  into  all  the w o r l d ' s  microprocessors,  states w o u l d l i k e w i s e h a v e to p r o t e c t t h e i r c i t i z e n f r o m c o r p o r a t i o n s .  Our homes  wires,  and  will soon  microprocessors.  all be n e t w o r k e d i n t e r n a l l y in a c o m p l e x h i v e o f p r o t o c o l s ,  E v e r y t h i n g , right  down  to  the  seemingly  absurd -  our  The State of the Network: Beta-Testing a New Governance for Intellectual Property D a r r i n Hurwitz  75  123  toasters and dishwashers - will be connected to each other and to the Internet.  "Even  your front door will be connected so you can ... email a change to lock out your ex."  124  If  current trends persist, we will find ourselves in a world indeed controlled by corporations. With digital laws set, governed, and enforced by corporations, it will be corporations that control the information entering and leaving our work and homes. If the only way to regain control over intellectual property is through increased corporate control over protocols and computer systems, our lives will be governed by corporations. Everything is going Internet, going digital. And so somewhere in this puzzle will have to emerge our state-governments as protectors of their citizens, as regulators of what Microsoft, IBM, and do with the information they send and retrieve to and from our homes, our computer systems, our dishwashers, our refrigerators. This sounds remarkably like the Big-Brother of science fiction but it will be reality. The frightening truth is that 'e-commerce' can no longer permit individuals freedom to write code that emulates, protocols such as MP3 and UltraHle. Media and technology powers would have us believe that the television set will soon be replaced by the Internet desktop. Ironically, the personal computer and Internet desktop may soon degenerate into the restrictive television model, void of creativity, innovation, and the empowering userinterface. A vital role for territorial government in the next millenium must be to protect individuals from Microsoft and other information Net-Powers that our insatiable appetite for information will inevitably coax out of the .com universe and into the hallways of legal power.  See Steven Levy, "The New Digital Galaxy," Newsweek, May 31, 1999, 56-62. Steven Levy, "The New Digital Galaxy," Newsweek, May 31,1999, 62  The State of the Network: Beta-Testing a New Governance for Intellectual Property Darrin  76  Hurwitz  Works Cited Texts Cordell Arthur J. and T. Ran Ide. The New Wealth of Nations: Taxing Cyberspace. Toronto:Between the Lines, 1997. Diffie, Whitfield and Susan Landau. Privacy on the Line: The Politics of Wiretapping and Encryption. Cambridge, Mass: London, 1998. Dyson, Esther. Release 2.0: A Design for Living in the Digital Age. New York: Broadway Books, 1997. Goldsborough, Reid. Straight Talk about the Information SuperHighway. Indianapoli: Alpha Books, 1994. Harris, Lesley Ellen. Digital Property: Currency of the 21 ' Century. New York: McGraw-Hill s  Ryerson, 1998. Lloyd, lan J. Information Technology Law. London: Butterworths, 1993. Pinker, Steven. The Language Instinct. New York: W. Morrow and Co, 1994. Reidenberg, Joel R. "Governing Networks and Cyberspace Rule Making." Emory Law Journal. 1996. Rosenberg, Richard S. The Social Impact of Computers. 2ed. Toronto, Academic Press, Inc., 1997. Slatalla, Michelle and Joshua Quittner. Masters of Deception: The Gang that Ruled Cyberspace. New York: HarperCollins Publishers, 1995. Zacher, Mark W. and Brent A. Sutton. Governing Global Networks: International Regimes for Transportation and Communications. Cambridge: University Press, 1996.  W W W References Aguilar, Rose. "Congress Educates Itself about the Net." CNN Online. March 28, 1996. []. Auerbach, John. "IBM to Yank Ads over Privacy Rules." Ziff-David News Network. 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"MS Ballyhoos Digital Audio." Wired News Online, March 17, 1999. []. Jones, Christopher. "Net Video Coming of Age?" Wired News Online. March 23, 1999. [].  Kerstetter, Jim. "RSA's encryption challenge solved in 39 days." PC Week Online. February 26, 1998. []. Kaplan, Carl S. "Finding Government's Role in a Global Network." New York Cybertimes. July  The State of the Network: Beta-Testing a New Governance for Intellectual Property D a r r i n  78  Hurwitz  10, 1997. Kornblum, Janet. "A Reason to Go Online." C-Net News. September 1998. [].  Lenihan, Rob. "Phantoms menace 'Star wars'." CNN Interactive. May 28, 1999. [http: //www. c n n. com. ] Levy, Stephen. "The New Digital Galaxy. " Newsweek. May 31,1999. 56-62. [] Lloyd, Robin. "Microsoft Instant Messaging App Sparks Code War." CNN Interactive. July 23, 1999. Kujubu Laura and Ted Bowen. "Instant Chaos. " CNN Sci-Tech Computing,. August 3, 1999. []. Luening, Erich. "Creative's New Tune: Portable Mp3." C-Net News, Personal Computing. March 5, 1999. [] McCandlish, Stanton. Electronic Frontier Foundation Online Activist, "The CDA: Has It Fallen? Can it Get Up?". []. Feb. 13, 1995. Macavinta, Courtney. "Bill to Nail CDA's Coffin." C-NET. February 14, 1997. [http:/www. news. com]. Miles, Stephanie. "Judge Sides with Sony in Game Spat." C-Net News: Personal Technology. April 22, 1999. [] "MP3 Cutting into Music Sales?" Wired News Online, March 24, 1999, []. Tanaka, David. "From the Editor." Canada Computer Paper. June, 1999. [] "PJAA Threatens to Sue Lycos over Mp3." Reuters News, March 25, 1999. [].  /  Diamond Multimedia Rio Player. [].  The State of the Network: Beta-Testing a New Governance for Intellectual Property Darrin  79  Hurwitz  "Samsung Electronics Launches ' Y e p p ' , the Worlds Smallest M p 3  Player." CNETNews. April  28, 1999.  Seti@home." The Philastropher. Volume 24. Number 1. October 1997. [].  Shaw, Duncan. "Security and Protection Series: Copyright Protection in the Digital World." Reciprocal Press Releases. February 1998. [ .htm].  Slind-Flor, Victoria. " L i n u x M a y Alter IP Legal Landscape." The National  Law Journal.  March 8, 1999. [].  Sprenger, Polly. "Sony Snubbed Again by Court." Wired News, March 12, 1999. []. Sullivan, Jennifer. "Getting Some A l i e n Experience." Wired Magazine  Online. August 3, 1998.  []. " U l t r a H L E and Emulators," E-Gamez Features, February 15, 1999.  [].  " U . S . E U still wrangling over Privacy." March 17, 1999. Bloomberg News. []. "Web A d s Invade P C A p p s . " Wired News Report. October 5, 1998. []. "What's Related: Everything But Y o u r Privacy. " InterHack. October 1998. [].  "What is Seti(ajhome?" []. Page last updated A p r i l 11, 1998.  Homepages Discussed 50 Best Warez Sites, []. [].  The State of the Network: Beta-Testing a New Governance for Intellectual Property D a r r i n Hurwitz  Apple Quicktime. [].  B C T E L Multimedia Gateway, [] Bezerk Online Game Network, []. []. CDCoverCentral. []. Creative Lab's Nomad M P 3 Portable Player, []. CyberCash. []. CyberThrill Casino, []. Dave's V i d e o Game Classics,  []  Diamond Multimedia Rio Homepage, []. Digicash. []. Distributed Net, []. []. E m u H Q . [], Freeroms. []. Happy Hippo, []. Hewlett Packard, [], [], I C Q Homepage, []. [ ]. Intervu: Powerful Solutions for A u d i o and Video, []. []. Microsoft. []. M i l l e n n i u m Warez. []. [].  The State of the Network: Beta-Testing a New Governance for Intellectual Property D a r r i n  Hurwitz  N e w s g u y N e w s Service, [].  RealNetworks: The Home o f Streaming Media, []. Rogers@home. []. @ H o m e Corporation, []. "Silicon Investor, []. []. StarWars: Episode I Homepage, []. The Warez Emporium, Top 25 E m u and Roms.  []. [].  Top 100 Warez. []. V i v o Software, []. V Q F : The N e w World o f Digital Audio, []. []. W o r l d Wide Web Consortium. []. [].  


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