Napster’s Long Shadow: Copyright And Peer-To-Peer Technology

AA recent academic article has suggested that developers of peer-to-peer technology (P2P) face “insurmountable” obstacles in light of developments in digital copyright ten years on from the case between Napster and the Recording Industry Association of America (RIAA).

The article, published in November’s edition of the Oxford Journal of Intellectual Property Law and Practice, contains the argument that “[t]he Napster litigation exists within an environment underpinned by a broader power struggle”.

According to the article, written by Nick Scharf, a Lecturer at the University of East Anglia Law School, the broader power struggle is motivated by the monopoly in music distribution enjoyed by the music industry prior to the advent of P2P technology.

Scharf contrasts the centralized Napster server with the more recent cases of Grokster and the Pirate Bay, whose structure was less centralized.

The case against Napster, according to Scharf, was “based on proof that Napster knew about its users sharing copyright music”, whereas the case against Grokster wasn’t quite so clear. The ‘knowledge’ aspect of the argument was quite clear for Napster, particularly after the discovery of an “email from Sean Parker (Napster’s co-founder)…explicitly using the phrase ‘pirated music’”.

Grokster, unlike Napster, didn’t have a centralized server. In fact, the only knowledge Grokster had of its users’ infringements was acquired after the infringements had occurred.

The tool that is copyright law was then adapted to catch out the P2P network; that Grokster had no timely knowledge of the infringements was established, but that didn’t absolve it of a second charge: inducement.

According to Scharf, The Supreme Court delineated three signs of intent to encourage infringement:

• The defendant promoted the infringement enabling virtues of its device;
• The defendant failed to filter out infringing uses; and
• The defendant’s business plan depended on a high volume of infringement

In short, Grokster was caught red handed.

Scharf argues that the significance of this is that the scope copyright liability was extended. Knowledge of infringement is clearly of lesser scope than the charge of inducing breach of copyright.

For instance, the last point above outlined by The Supreme Court is substantially vague. Of course Napster and Grokster’s respective business plans benefitted courtesy of a “high volume of infringement”, but that’s hardly how the business plan need be interpreted. The business plan is to achieve a high volume of users. Infringement is incidental. It’s not inherent to the business plan. Had a similar volume of users shared homebrew software or user-generated images, the business plan would have been just as successful.

In the case of The Pirate Bay, we’re looking at a website which merely collated extensive lists of torrents containing illegal reproductions of copyright content. It would be naive to suggest that such a list is but an innocent file directory for innocently curious users, but it’s hard to make the claim that the existence of such lists serves to encourage copyright theft. Although the RIAA has engaged Google into taking action against its search results, which frequently include links to illegal content, it is hard to imagine Google being portrayed as the digital pariah peer-to-peer became (PP2P).

It’s a pity that the mere creation of a P2P client is associated with what Scharf calls ‘bad intent’ or even knowledge, but, as he asserts, “the onus is on the P2P operator to disprove it”.

It’s fitting to end with a rather poignant quote from Schaft, whose article is an excellent way of contextualizing P2P debate:

“It is an unfortunate fact of modern life that such efficient mechanisms are used to disseminate illegal, rather than legal, copies, but shutting down P2P networks to solve the problem of infringement ignores the potential legitimate uses of such technology and instead, forces us to rely on a less efficient mechanism for disseminating digital content.”

Samuel Agini is the Editor of Andrew Apanov’s Dotted Music.