Cryptography and Anonymity: Two Reasons Why the First Amendment Favors Peer-To-Peer Technology

On February 12, 2001, the electronic world watched as the Ninth Circuit returned its unanimous decision against the Napster in A&M Records, Inc. v. Napster, Inc. Though the service continues to exist with a radically altered business model, many of Napster\\u27s users referred to the decision as one that killed Napster. What the decision did not do, however, was to kill the public\\u27s desire to trade files freely, especially music files. Indeed, ever more sophisticated and powerful alternatives to Napster continue to sprout, attracting former Napster users in droves. When Napster was no longer provided a viable means for file sharing was not reduced, it shifted to whatever service could continue to provide access to content. New technologies periodically threaten to eliminate content owners\\u27 abilities to enforce their copyrights, and American copyright law has been at odds with such technologies since its inception. In nearly every case, however, copyright has adjusted to the new technology, frequently finding an unexpected trove of revenue for the copyright holders who had so decried the new technology. Examples of such technologies include piano rolls, phonorecords, motion pictures, cable television, photocopiers, video cassette recorders ( VCRs\u27), and digital audio tapes ( DATs ). Modern file sharing technologies, such as Napster, present yet another such new technology which threatens the rights of copyright holders. The descendants of Napster, however, offer something more. By incorporating strong cryptography and anonymity into modem file-sharing systems, they potentially offer unparalleled avenues of speech. The result pits the First Amendment squarely against the Copyright Act in an unprecedented manner