Ok i know this is a HUGE post, its from my groups thesis paper this year over file sharing networks. I'm confussed as to what i'm reading above because i thought the grokster case had already been heard?
The rise and fall of Napster
The digital age of music sharing was started in 1999 by none other than an 18-year-old college drop out. Shawn Fanning changed the music industry forever with his popular program, Napster. His idea was simple: to allow computer users to share and swap files for free through a centralized server. He got the idea when he discovered how hard it was to find music on the internet. After working for sixty straight hours, he wrote the code for the program known as Napster. The code included a music-search function, allowed users to find music with ease by simply typing in the name of the song or artist they wished to find. Napster also included the file sharing system which allowed a person to download music directly to his or her computer. Shawn Fanning even included an instant messenger to facilitate a communication system so users could communicate directly with each other. (Burkhalter, n.d., p. 1)
Before Napster, obtaining a variety of music from the internet was difficult, at least to this scale. Through Napster, people could share billions of songs and transfer rare copies of music which are unable to found in any retail music store. When was the last time Best Buy carried CD's from artists such as "Kinky Friedman and the Texas Jew Boy Band"? Napster allowed users to also discover up and coming artists, such as O.A.R. who has since became famous because of Napster. Napster also gave users the capability to discuss music trends in the messenger feature with people half-way around the world.
In December of 1999, the Recording Industry Association of America (RIAA) sued Napster for copyright infringement, since artists' works were being downloaded without the permission of the artist or the record labels. "Publicity and word-of-mouth attracted more Napster users and inspired the web community to start building its successor in case Napster should be shut down" (McManus, 2003, p. 1) Because of the increase in popularity due to the publicity the
RIAA was drawing to Napster, they saw the network as a major threat and was a catalyst for actions to be taken to shut it down.
MP3.com, another type of file sharing provider, launched their own version of Napster "which permitted users of the service to 'play' songs that they 'owned' from large servers maintained my MP3.com" (Radcliffe, 2004, p. 1). MP3.com never received permission from the record labels, no different than Napster. MP3.com, however, put their songs on their own servers, which they maintained, whereas Napster only provided a search engine for users to search other people's computers through the Napster server. (Radcliffe, 2004, p. 1) Since MP3.com had the songs directly on their servers that a user could download from, they were directly infringing on the copyright laws.
Napster, however, does not store any files on its servers, and thus, Napster did not directly infringe any of the rights of the copyright owner; the users were the infringers. Napster’s defense was based on "the landmark Sony case, 'Sony Corp. v. Universal Studios,'" (Radcliffe, 2004, p. 19) which was discussed in a previous section. The case was about whether the Betamax, the first VCR that could record tapes, would hold Sony liable for the making of illegal copies of tapes because of their product. The court held that “the 'Copyright Act' does not expressly render anyone liable for infringement committed by another. The 'Patent Act' expressly brands any one who 'actively induces infringement of a patent' as an infringer and further imposes liability on certain individuals labeled 'contributory infringers'." (Radcliffe, 2004, p. 19)
In finding Sony not liable, the court drew from the staple article of the "Commerce Doctrine" codified by Congress in the patent statute. The patent statute states that, "as long as an article has 'substantial non-infringing uses,' it will not be held to infringe another’s patent." (Radcliffe, 2004, p. 19) Therefore, "the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes.” (Radcliffe, 2004, p. 19) In other words, as long as the product is used widely for legitimate purposes, such as artists who want to share their music, it is outweighed by its “illegitimate” objectives, i.e. artists who don't want to share their music.
Napster based its defense in court on three types of allegedly non-infringing uses: 1) space shifting, 2) sampling, and 3) permissive use. (Radcliffe, 2004, p. 23) The argument for space shifting was based on the ability that through Napster people could use the software to transfer music files from their computer to another computer or other device owned by the same person. In other words, they claimed the program was created to enable people to transfer music that they already owned. The proof of such happening was “very thin”, as stated by the judge, and he dismissed the claim that even if it was used for this purpose, it was so infrequent that it wasn't used widely enough to fall under "legitimate" purposes. (Radcliffe, 2004, p. 23)
Napster then proceeded to argue the idea of sampling, which said that users could listen to music which they wouldn’t normally have access to and could make a better decision on CD purchases. To counter, the
RIAA argued that, through surveying college students, CD sales around colleges had dropped dramatically due to the introduction of Napster. Napster's affect on CD sales was one of the most hard-fought battles of the case. In the end, Judge Patel chose to believe the surveys provided by the
RIAA, thus defeating Napster's "sampling" defense. (Radcliffe, 2004, p. 23) The final argument was overruled because the number of permissive users, those who only downloaded music made available with permission of the artist or record label, was too few. In other words, according to the court, there were too many people downloading copyright protected music.
On July 12, 2001, after a long and heated court battle, Napster was ordered to shut down after it failed to adhere to the California-based Gracenote agreement which was to filter out copyrighted music. (Sumrall, 2003, p. 2) Napster desperately tried to adhere to this agreement but users kept finding ways around it by renaming the songs ever so slightly. The important notion in this case however, is that the courts did not address the broader issue of pure peer-to-peer systems in which there is no central directory until the Grokster case on August 19, 2004.
Grokster was yet another variation of Napster, a program that allowed users to download MP3’s right to his or her computer. In the Grokster case, the decision by the Ninth Circuit Court represented the first failure by the music industry in its campaign against file sharing services. Grokster turned the case by the manner in which their software worked. Grokster used FastTrack software licensed to it by Kazaa. Grokster's peer-to-peer file sharing network is the supernode model in which a select number of computers on the network are designated as indexing servers. All the file sharing is done using the participant’s personal computers so Grokster has no servers of their own. By having no servers, Grokster can’t be held liable for what is downloaded through their software. Any computer in the network could function as a supernode, or server, if it met the technical requirements, such as speed. (Radcliffe, 2004, p. 25)
According to Judge Goldstein, the Napster case had misread the Sony case and its application. The Sony case states that "if the product at issue is capable of substantial or commercially significant noninfringing uses, then the copyright owner must demonstrate that the defendant had reasonable knowledge of specific infringing files and failed to act on the knowledge of that infringement" (Radcliffe, 2004, p. 26). In other words, Grokster would have to specifically know and receive a notice when copyrighted material was being downloaded at that specific time. Obviously, over the internet this standard would be nearly impossible to meet.
The court found:
that Grokster had not materially contributed to the copyright infringement because, unlike Napster, Grokster did not provide the sites and facilities for direct infringement. Grokster did not provide indices or access. The court found that Grokster had no control over its software once it was distributed and went on to say 'even if Software Distributors closed their doors and deactivated all computers within their control, users of their product could continue to share files with little to no interruption.' (Radcliffe, 2004, p. 26)
The court found that Grokster only supplied the software for the users to share their files, and therefore, they were not held liable for direct infringement, or the actual act of downloading the music. Because Grokster didn't have the ability to supervise their users, the direct infringers, they were also not held liable for vicarious infringement. There is no registration or login process, therefore Grokster has no ability to terminate access to file sharing functions, once their software is downloaded. In turn, Grokster has no control over their users' application of their software. (Radcliffe, 2004, p. 26)
The court also ruled in favor of Grokster, that Grokster was not required to prevent sharing copyrighted files and rejected the
RIAA claim that Grokster was liable because it “turned a blind eye” to the infringement of their users. This is an interesting statement in and of itself. Napster also made the same claim but was shot down in 2001. The courts now claimed that “negligence did not establish a separate level of liability to be held accountable for.” (Radcliffe, 2004, p. 26) To put into simpler words, because Grokster's software did not prevent people from being able to transfer copyrighted music, they cannot be held accountable for copyright infringements.
The court noted that
the alleged ability to shut down operations altogether is more akin to the ability to close down an entire swap meet or to stop distributing software altogether rather than the ability to exclude individual participants, a practice of policing aisle, and the ability to block individual users at the point of login and the ability to delete individual file names from one’s computer…the sort of monitoring and supervisor relationship that is supported by vicarious liability in the past is completely absent in this case. (Radcliffe, 2004, p. 26)
In other words, once the software was downloaded, the provider had no control of how it was used. Even if the company went bankrupt, it would have no effect on the productivity of their software.
The court stated that it disagreed with Napster’s interpretation of the Sony Corp. v. Universal Studios case, requiring an analysis of how probable the non-infringing uses of a product were. The Grokster case was significant in that it established a roadmap for companies in developing their products. More importantly, if Grokster had been decided differently, it might have imposed potential liability on manufacturers whose products have both infringing and non-infringing uses but whose use they don’t control once it has been distributed. (Radcliffe, 2004, p. 26)
