Some users of the Napster file-sharing program have been put on notice and had their accounts suspended, because they have been reported to the California company as copyright violators. No, it was not a recording artist or record company that initiated the ban, it was a Nashville, TN company called Copyright.net acting on the behalf of copyright holders. 

By using the software product the company released last October called CopyrightAgent, the Copyright.net is able to identify users on Napster who are �sharing� copyright protected songs by certain artist. In a press release by Copyright.net they describe the software as follows: �CopyrightAgent (patent pending) works across peer-to-peer networks and other Internet environments to locate and legitimize copyrighted works that have been identified as unauthorized uses.� 

Once an infringing file is identified the software automates the provision of the Digital Millennium Copyright Act (DMCA) by sending ��individual or batched e-mails to the ISPs [In this case Napster] notifying them of the location of the unauthorized copyrighted works, in the form required by the DMCA. Users of the unauthorized works receive these notifications from their ISPs and may reply using CopyrightAgent's automated message system indicating whether they wish to remove the work, send a counter notice indicating a belief that they received a notice erroneously, or request permission to use the work.� 

What this means for users that are identified by CopyrightAgent is they may end up losing access to their Napster accounts and if reported to their ISP the user just may lose their Internet access in order for the ISP to comply with the DMCA. Copyright holders who are subscribers to the CopyrightAgent simply need to supply the software with a list of copyrighted material to search for and the software then compiles a list of IP addresses, matches the IP�s up with an Internet Service Provider (ISP) and processes a batch list for each ISP found. Then the ISP�s are notified of the infringement and according to Copyright.net the �Users of the unauthorized works receive these notifications from their ISPs and may reply using CopyrightAgent's automated message system indicating whether they wish to remove the work, send a counter notice indicating a belief that they received a notice erroneously, or request permission to use the work.�

One of the options for the user is to signup for the CopyrightAgent, which at this time is free under a �beta� test period, but in the future would allow the users the comply with copyright law by paying a licensing fee for the copyrighted material. The aim of the CopyrightAgent is to �empower the marketplace. We believe the copyright community wants a less restrictive marketplace, and a means to obtain a fair price and permission to use copyrighted material.,� according to Tim Smith, co-chairman, president and CEO of Copyright.net. �Many consumers of copyrighted works want to compensate the people who create the works they so clearly value, but haven't been given the ability to do so."

Some believe that the software infringes on their privacy. 

Attorney Fred von Lohmann told Wirednews.com �Once the first note is sent to the users, ISPs are stuck. They don't have the right to burrow into the users' hard drives to verify the material is infringing. That doesn't seem like the right answer here. Similarly, I don't want the ISPs rolling over on the end user, giving away all of their information to third parties,� said von Lohmann �I don't think that the user should be terminated just because they might be trafficking infringing materials. The take-down policy [a provision of the DMCA] only applies to links and Web pages. We don't want a world where content owners can, just with an accusation, terminate users' Internet access.� 

In Copyright.net�s first notice to Napster, the company requested that 50,000 users accounts be suspended. One of the those users, Nancy Bogar of Woodbridge, New Jersey, believed her privacy was violated and is contemplating legal action against Copyright.net. 

Bogar, an avid music fan, told antiMUSIC that she was misidentified by the CopyrightAgent as a copyright violator on January 31, 2000 because an MP3 file of the Little Texas song �What Might Have Been� resides on her hard drive.  Bogar says that she created the file from a CD she owns and uses it to listen to music on her computer. 

According to Bogar, once she received notice that she had been banned from Napster, she signed up for the Copyright.net service and sent Napster a �Counter Notification�, which under the DMCA, allows users to request that their accounts be reinstated if they believe they were misidentified as a user sharing infringing material. 

When her service was not reinstated she sent a series of emails to Napster and Copyright.net in one she told Copyright.net. �I do not share files.  I am a 54 year old disabled woman who likes to listen to her music. When I signed up for Napster, I checked off the box that said DO NOT WANT TO SHARE FILES.  All I wanted to do was listen to the music I like.� 

Bogar believes that the CopyrightAgent violated her privacy by accessing her hard drive to locate a file she did not share on the Napster network. (It is possible that the Napster software was setup incorrectly on her computer and she inadvertantly shared the file in question. -ed) She is concerned about her rights and is contemplating taking legal action against Copyright.net. Thus far, she has informed New Jersey Senator Robert Torricelli of her concerns as well as Utah Senator Orrin Hatch, who chairs the Senate Judiciary committee. Hatch stated recently during his address at the Future of Music Policy Summit in Washington D.C. 

� I do not think that it is of any benefit for artists or fans to have all of the new, wide distribution channels controlled by those who have controlled the old, narrower ones,� said the Republican Senator and musician. �This is especially true if they achieve that control by leveraging their dominance in content or conduit space in an anticompetitive way to control the new, independent music services that are attempting to enhance the consumer�s experience of music.�

If Congress decided to look further into this issue they will deal in part with a former colleague, Ralph Oman, who sits on the Board of Directors for Copyright.net. Oman was Chief Counsel for the Subcommittee on Patents, Copyrights and Trademarks, Committee on the Judiciary of the US Senate from 1983 to 1985 as well as Register of Copyrights of the United States from 1985 to 1993. 

Update: antiMUSIC has received a clarification from someone familiar with Copyright.net. According to this reader, the CopyrightAgent in no way scans the user's computer, it simply logs into the Napster database and searches for files in that database and then identifies the Napster user who is sharing the copyrighted files. Nancy�s problem may have stemmed from a problem with the Napster program that listed files for sharing that she did not wish to share.

Update 8-8-01: antiMUSIC received the following statement this morning from Tim Smith President and CEO of Copyright.net, who was unable to respond at the time this article was first published.

As I was traveling, I was unable to respond to your request until today. Please be advised that Nancy, by virtue of being a Napster user, lists all of the files on her hard drive on a Napster server for everyone in the Internet universe to see. We did not invade her privacy by accessing her hard drive. Further, after Nancy established her account with Copyright.net, a message was instantly sent to Napster requesting that her service be reinstated. There were some delays in getting her service reinstated but we acted instantly. We sent a copy of the Napster service reinstatement letter to Nancy as well, after she informed us that her service had not been reinstated.

The nuance that is confusing Nancy and much of the market is that she has the right to copy something from a CD that she bought and put on the copy on her computer or on her MP3 player for her personal use. She is not allowed to put it in a shared folder and allow others to copy it. This turns her into a distributor of the copyrighted work and only the copyright owner can authorize the distribution of their work.