March 29, 2005

Supremes Cave to Peer-to-Peer Pressure

The judicial system is even slower than dial-up internet. Gelf's legal commentator on why online music piracy can't be eliminated in court.

Aaron Zamost

Every time the Supreme Court hears a case concerning new technology, I'm reminded of an article from The Onion entitled, "Getting Mom Onto Internet a Sisyphean Ordeal." (My favorite part: "Mom paged me because she got a message about accepting cookies. She was all freaked out because now she thought she was being charged for actual cookies.") With the average age of the nine justices topping 70, it's hard to imagine that any of them have downloaded music or used file-sharing programs, or even have an appreciation for how quickly new technology creates legal problems. The judicial system simply can't keep up with the speed of innovation, and it isn't clear if the Supreme Court has figured this out.

The Recording Industry Association of America definitely hasn't. In December 1999, long before the RIAA decided that the best way to address illegal music downloads was to prosecute 12-year-olds (CNN), the RIAA sued Napster, the first major file-sharing program on the internet. While music-industry reps would deny it, their suit turned a small startup company into the Godfather of the online music-swapping explosion of the early 2000s, and sent millions of people who would otherwise not have known of the burgeoning free-music trade to their computers to download music. By the time courts handed down preliminary injunctions and finally shut the company down two years later, onetime Napster users and online music fans had migrated to Napster progeny Morpheus, Gnutella, and Scour Exchange. When the RIAA finally enjoined those services, users moved on to MusicCity, KaZaA, and Grokster. It took the recording industry another year and a half to finally get around to suing the new peer-to-peer file-sharing programs.

In early 2003, MGM filed suit against Grokster in federal court. Today, over five years after the RIAA first sued Napster, the Supreme Court will hear the case of MGM v. Grokster, its first arguments on the subject of online music piracy. (See a summary of the arguments here—it's balanced, despite being hosted on the website of the Electronic Frontier Foundation, which is defending Grokster.) While the recording industry has been suing individual file sharers since 2003, here music companies are asking the Court to hold peer-to-peer software developers—not the downloaders themselves—liable for the copyright infringement of its users.

To prove Grokster liable under the theory of contributory copyright infringement, MGM must show: "(1) direct infringement by a primary infringer; (2) knowledge of the infringement; and (3) material contribution to the infringement." (This rule was first established in Sony-Betamax v. Universal City Studios, when the Supreme Court held that the developers of VCRs could not be held liable for contributory copyright infringement, even though the defendant knew the machines were often being used illegally.) The first element may be satisfied by showing that any Grokster user illegaly downloaded copyrighted music. But the other two elements are harder to prove: MGM must establish that Grokster not only had specific knowledge of its users' illegal activities, but that it contributed to the infringement and failed to act upon that information.

It is unlikely that the Supreme Court will outlaw all peer-to-peer services entirely; instead, it might only fine-tune the judicial definition of "material contribution." In the Napster case, Napster was found liable because the program provided a directory of songs for users to search; copyrighted files resided on Napster's computers, and Napster permitted users to download files out of these indices. The Ninth Circuit Court of Appeals held that this was a "material contribution." But peer-to-peer networks like Grokster avoid this problem entirely. Since Grokster distributors are not access providers, they do not provide the "site and facilities" for infringement: they can't delete offending files or indices, they don't provide storage or maintenance, and they can't cancel user accounts. As the Ninth Circuit noted, there can be no "material contribution" when it is "the users of the software who, by connecting to each other over the internet, create the network and provide the access." Today, the Supreme Court decides if it agrees with this ruling.

But it doesn't really matter how the Supreme Court rules. It is hard to imagine that a decision holding peer-to-peer developers liable will solve the RIAA's problems with online piracy. Last week, the Pew Internet & American Life Project reported the results of a survey of 1,421 adult internet users. Pew found that 27% of internet users (over 36 million Americans) download music or video files online, and that half of those users have "found ways outside of traditional peer-to-peer networks or paid online services to swap their files." With a six-year head-start toward amassing digital music archives, downloaders are using email and instant-message programs to trade music, and users now are able to raid one another's iPod/iTunes libraries. According to Pew, 57% of broadband users do not believe the government can do much to reduce illegal file-sharing.

Some people have embraced the inevitability of online piracy and have tried their best to offer alternatives: even sells individual MP3 song files. But the RIAA insists that bringing cases like this one to the Supreme Court can end illegal downloading. It is wrong. If Grokster is found to have materially contributed to copyright infringement, peer-to-peer programmers will certainly develop new file-sharing networks to succeed without such contributions, and it will be 2007 by the time the RIAA has any ability to litigate this new case in court. By the time MGM v. Grokster II is decided, downloaders will have dozens of new options.

This new case is certainly a big deal for the defendants at Grokster, but it isn't for the millions of users who currently use the program. If the court rules that peer-to-peer developers may be found liable for the illegal file-sharing of their users, the recording industry merely will have done music lovers another great service, once again inspiring programmers to develop a different, better product in which the server doesn't materially contribute to user downloads. Old-school industry representatives will be better off when they understand that injunctions and judicial decisions don't help. But given their penchant for litigating these issues in court, getting them to understand this point may be even harder than getting Mom onto the internet.

Related on the web

• File-sharing is moving offshore. Read about the rise of Russian download sites at the Wall Street Journal Online and Slate.

• Track the Supreme Court's arguments at SCOTUSBlog and Boing Boing.

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- Law
- posted on Mar 31, 05
David Harkness

Napster didn't store the music files on their servers. Instead, it stored an index of which users had which songs: artist, title, album, length, etc tagged with the user. Napster contributed then by telling a user specifically where to go to acquire a track.

All other P2P programs now perform searches on individual user's computers. When you start a search, the software sends your query to several of your directly connected peers which search their library and in turn forward the query to their peers. The query is allowed to spread only so many hops away from your computer before other peers stop forwarding it.

Any peers that have the file send you back a reply so you can start downloading. They speed the process by downloading chunks from multiple peers simultaneously, easing the burden on each user's upload bandwidth which tends to be lower than that for download.

The difference is that Napster provided information on where exactly to acquire music illegally. Grokster only tells you who might have "content" and leaves it up to the users to keep it legal or not.

An analogy for Napster would be asking someone where you can buy weapons-grade plutonium illegally. If they tell you, they are contributing to your illegal behavior. For Grokster, it's like asking someone where you can buy chemicals. They tell you "Jack's Chemicals" sells them, and if Jack decides to sell you plutonium, that's Jack's problem -- not Grokster's.

Article by Aaron Zamost

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