The law struggles to keep up in a digital world

by Laura Fumiko Keehn 

There are currently 600 million high-speed internet us­ers in Asia alone, and search engines and file-sharing capabilities are expanding all the time. But the easier it is to access information, the harder it is to regulate the copyright. How is the law keeping up with these technological developments? David B. Hoppe, founder and Principal of Access International Law Group spoke to the American Chamber of Commerce in Japan on Developments in E-Commerce Law.

From Napster to Grokster

Perhaps no other form of technology has caused cop­yright owners more grief than file-sharing programs. These programs make music, video, images, and even books available easily and, more importantly, free to users unaware of the fact that they may be infringing on copyright laws.

It took a while for technology developers to be held accountable for copyright infringement. However, there is a precedent to the question of accountability for tech­nology. Over 20 years ago, VCRs were the biggest threat to copyrighted material. Because people were recording television programming using Sony’s technology, Sony was thought to be potentially accountable. Ultimately, the Supreme Court ruled that the use of Sony technolo­gy to tape television programs qualified as fair use since the “developer should not be liable for infringing activi­ties if [the] product has legitimate uses.”

With the advent of the internet, though, data can be copied on a much larger scale, and someone had to answer for the fact that more people download, rather than purchase their music. The widely used free peer-to-peer file-sharing program Napster was the first to get nabbed. One of the reasons Napster was ultimately held accountable was because it kept a database of the shared files, including copyrighted material.

Next was Grokster, another free peer-to-peer file-sharing software. Grokster was found accountable for its intent. Hoppe explained that the Supreme Court looks for evidence of “clear expression or other affirm­ative steps to foster infringement.”

There is still countless free file-sharing software in wide use, and the Napster and Grokster Supreme Court rulings by no means offer clear-cut guidelines for the accountability of such software. “Would the same technology with different intents still be liable?” asks Hoppe, “there is still uncertainty for technology liable for intellectual file sharing,” he concludes.

Seek and you Shall Find

It’s not just the file sharing that is giving copyright own­ers grief. Search engines make life so easy — maybe too easy. You can look for anything on engines, and if they have their way, you can find anything too — includ­ing copyrighted material. Google announced its Google Print project over a year ago, in which it hopes to make printed matter available online. They are currently en­acting an ‘opt-out’ option for authors or publishers who do not want to be included in the database since some feel this is a clear infringement on their copyright.

Keying is another search engine practice that may violate copyright laws. Hoppe explained that keying is the use of copyrighted terms to advertise potentially rival products. Search engines have keyword packag­es that they sell to advertisers. Adult content clients are offered a package of hundreds of ‘really naughty’ words, including certain trademarked nouns. “Playboy took particular exception to the word ‘playboy’ being included” says Hoppe, which lead to a five-year Play­boy vs. Netscape lawsuit.

It may take a few more lawsuits to settle copyright guidelines in an information age, evidence that inno­vation in technology and legal regulations do not al­ways develop side by side.

This article is based on a presentation given David B. Hoppe on Nov. 15, 2005, organized by the American Chamber of Commerce in Japan.

The mission of the American Chamber of Com­merce in Japan (ACCJ) is to further the development of commerce between the United States of America and Japan, promote the interests of U.S. companies and members, and improve the international business environment in Japan. Established in 1948 by repre­sentatives of 40 American firms, the ACCJ has grown into one of the most influential business organizations in Japan, with more than 3,000 individual members representing more than forty countries and 1,300 com­panies. For information on ACCJ membership and up­coming events, see