We have come a long way since 1999 when Napster was fined for knowingly encouraging and assisting copyright infringement by allowing internet users to download copyrighted music files. At the time Napster argued they were protected under “fair use” doctrine but this did not fly with the judges who ascertained that peer-to-peer file sharing was commercial in nature even though no fee was charged. It was the repeated and exploitative copying of musical works of art that constituted a commercial use eventhough peer-to-peer was a free service.

Peer-to-peer was a brillant phenomena that added a crinkle to legislative issues. Firstly no one was making money – though the music industry was losing huge CD sales. And secondly the concept did not include a central server holding the information since in peer-to-peer a server simply points one user to another who has the desired file. This makes it difficult to hold the owner of a server responsible. Well, regardless of these facts Napster was shut down but not before turning some 60 million users onto the phenomena of peer-to-peer sharing. It wasn’t long before Kazza and many other p2p services sprung up to replace Napster.

Today peer-to-peer file sharing is a fact of internet life comprising 45% of internet traffic.

I was recently at a seminar where a young father asked what he should tell his children about downloading music. He had been charged for downloading music through Napster. This man’s question brought much discussion on how the law of “fair use” should be interpreted today.

Should a mother who placed a video on You Tube of her 18 month old daughter dancing to Prince be charged with copyright infringement? Or should the kid who took a photo of Sesame Street’s Bert and placed it peering over Osama Bin Laden’s shoulder be charged? Incidently you may have heard how this photo hit Reuters News Wire as some protestors in Kamal downloaded the photo from the internet and pasted it on 2,000 signs for their demonstration against the US lead attacks against Afganistan. The Sesame Street folks were not amused. I guess you could call that a mashup gone viral.

One thing is for certain when Professor John Palrey, executive director of the Berkman Centre for Internet and Society at Harvard Business School stated in November of 2005 that there was something absolutely amazing happening with respect to the Internet but that “Napster was only the opening act”, he was right.

Lawrence Lessig, a law professor from Stanford Law School, and author of “Remix” states that our laws are really out of sync with current technology. He likened the war on peer-to-peer to the war on prohibition – both are failed wars.

How do you control a copyrighted image from appearing on 365 million computers and 5 billion cell phones?