(Written for a Public Law & Judicial Process [GOVT301] class at George Mason University.)

Napster, a once-promising new system of sharing files over the internet, is now essentially dead. After losing its monumental court case against representatives of the music industry and failing to win on appeal, the site today consists of a message declaring the site a “work in progress” and links to Napster merchandise. The file sharing program and its infrastructure no longer seem to exist.1

The core of the Napster issue has always boiled down to two primary interests (excluding musicians): users who wanted music for free, and companies who produced that music wishing to profit from it. The music industry, logically, felt that the availability of its products online for free would cut into their ability to make money and so they brought charges against the harbinger of the peer-to-peer file sharing movement—Napster.

This issue, as presented in Taking Sides, is usually viewed by the public as well as a question of whether sharing copies of music online is covered by “fair use”, or the concept that people can make copies of copyrighted material—like music—within certain bounds. Section 109 of the United States Code Title 17 (copyright law) explains that under fair use a person can make copies of copyrighted material for their own personal use, but cannot “sell or otherwise dispose of” that copy.2

It is tempting, as others are sure to do, to examine the issue on these terms. There is still debate over whether making electronic copies—arguably different than physical copies—of music online would constitute selling or ‘otherwise dispos[ing]‘ of that music. I would offer however that common sense must prevail here, and I will work in this paper on the assumption that electronic copies of music are indeed sufficiently similar to physical copies that their distribution should not be considered fair use.

Assuming that a copyright violation has indeed occurred when copyrighted music is distributed without the permission of the owning company, the question then becomes who has committed the violation. By bringing charges against Napster, the record industry has made it clear that they believe the file sharing services have violated the law. Napster’s fundamental error, and perhaps the reason they lost, is that they chose to put forth the argument that these copies were protected as fair use and not illegal at all rather than arguing that a violation had indeed occurred and that they were not responsible for it.

Section 512 of the United States Code Title 17 (Copyright Law) deals with the liabilities of internet service providers for copyright infringement. Subsection J of Section 512 specifically limits this liability to requiring the internet service to remove specific copyrighted material and/or block access to specific users who have posted or sent that copyrighted material.3 Although this is designed primarily for providers of internet access (America Online or Earthlink, for example) many of its caveats deal with aspects of information technology—data caching and so on—that apply as much to services like Napster as to any access provider.

Section 230 of the United States Code Title 47, while not dealing with intellectual property and copyright law, does provide immunity to internet services for libel and other violations when posted by service users.4 In Schneider v. Amazon.com, Inc. the United States Division 1 Appellate Court determined that this immunity applies not only to access providers but to other services such as Amazon.com, an online store.5 Logically then, this immunity would extend to services like Napster which provide electronic transactions of data (files). Likewise, the limited liability extended to internet services in Title 17 Section 512 regarding copyright infringement should also extend to services like Amazon.com and Napster.

In order to get to the bottom of where responsibility lies, we must understand the technological basis for peer-to-peer file sharing systems like Napster and its still-in-service brethren like Gnutella. In a pure peer-to-peer system (which Gnutella is and Napster was not) individual computers talk to one another directly using a “client”, or a desktop program.

Through this system people can share any files they wish to share, and anybody who has the client application is able to log in and download that file directly from the other user’s computer. It essentially creates a virtual repository of all the files that users of the service wish to make available to other users. In a pure peer-to-peer environment, there is no central service or controlling interest in the network. It is for this reason that Gnutella has not been targeted—there is nobody to target except the thousands and thousands of users.

Napster, however, was slightly different. While many of its hallmarks were similar to those of other systems—files were stored on each user’s hard drive and made available for sharing—Napster did maintain a central database of its users. Before being forced to shut down by the courts, there were several injunctions requiring Napster to limit trading of certain files and terminate the accounts of users who could be shown to have downloaded illegally copied music. The central pool of information which Napster maintained was why it was possible to bring charges against them.6

The fact remains, however, that Napster only provided a system for users to share files with one another. No files were ever actually located on Napster servers, and Napster never told users to post files which were infringing on copyright. There are thousands, perhaps millions, of “MP3″ song files which are either public domain or distributed freely with the permission of the author, and these files could have been shared using Napster technology without ever running against the rule of law. Napster did not compel users to share files illegally, but many—possibly most—users chose to anyway.

Even in the case as presented, the prosecution concedes that the “direct” infringement of copyright law was committed not by Napster, but instead by the users of Napster who copied and made available copies of music that they had no right to distribute. They allege that Napster committed “contributory” and “vicarious” infringement—or essentially that they knowingly let the users engage in illegal activity over their system for file sharing (to which the company could control access, to some extent).7 The flaw is that, as I’ve established with preexisting law and case law, internet services are immune from prosecution for the illegal activity of users of that service.

A basic concept of law is that something cannot be made illegal if, in the act of making it illegal, you infringe upon protected behaviors. For example, a law designed to prohibit profane speech worded too broadly could easily be used against persons exercising their legitimate free speech rights. While the swapping of music is not necessarily protected speech, certain parallels can be drawn.

For example, if Napster were required to prohibit the transmission of copyrighted music through its software it would be nearly impossible technologically—since copyrighted music can be renamed, edited, and adjusted to where it is nearly unrecognizable from a file standpoint as copyrighted—to halt those transmissions without halting the transmission of perfectly legal public domain and/or permitted copies of music. In short, Napster would be required to limit legitimate and legal use of its system in order to stop those who are violating the law.8

The impracticality of attaining these goals was, in the end, directly responsible for the bankruptcy and liquidation of Napster. By essentially stopping all network traffic on Napster, users moved on to other systems and advertising revenue nose-dived. This is clearly penalizing an internet service provider for the illegal activity of its members, and is tantamount to penalizing AOL when users of the service send illegal spam messages or threatening e-mails.

This penalization has no basis in previous case law and is, in fact, harmful in-and-of itself to internet consumers and users. Companies will be forced to watch their users with eagle eyes for fear of being prosecuted for their wrongdoing, and as a result privacy and freedom of speech/press/expression will be limited. This is a dangerous precedent to be setting when the internet and the success of the businesses that run it rest entirely on users concepts of openness and freedom. While Napster did indeed make it possible for users to share illegal copies of music, it is the users who committed the crime and it is the users who are liable.

To focus on Napster, merely a bystander in what became a well of illegal activity, is to misplace that focus, and as a result open up legitimate internet businesses to prosecution for the individual actions of their customers.


1 www.napster.com

2 Title 17, §109, http://www.loc.gov/copyright/title17/92chap1.html#109

3 Title 17 §512, http://caselaw.lp.findlaw.com/casecode/uscodes/17/chapters/5/sections/section_512.html

4 Title 47 §230, http://caselaw.lp.findlaw.com/casecode/uscodes/47/chapters/5/ subchapters/ii/parts/i/sections/section_230.html

5 Schneider v. Amazon.com, Inc., http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=wa&vol=2001_app/46791-3&invol=3

6 Darwin Executive Guides—Peer to Peer contributed to my report on the technological background of peer-to-peer, http://guide.darwinmag.com/technology/communications/p2p/. The bulk of the information, however, is based on my general knowledge of computer and internet technology based on several years working professionally in the IT industry.

7 Fred von Lohmann, The Napster Aftermath Part 1, http://www.legamedia.net/legapractice/von-lohmann_fred/2002/02-09/0209_von-lohmann_fred_napster-p2p_01.php

8 Based on the concept of overdeterrence as presented by Assaf Hamdani, Who’s Liable for Cyberwrongs from the Cornell Law Review, May 2002 v.87 i.4 page 901-958