Lex 8256: The Law in Cyberspace Seminar

Peer to Peer File Sharing

-Apurva Shah


Many people have some type of experience with peer-to-peer file sharing systems.  In fact, most of you have probably used a peer-to-peer file sharing system such as Napster, Kaaza, Morpheus, SoulSeek, Lime Wire, etc (the list goes on and on).  People use these file sharing networks to share a variety of digital files including copyrighted music and movies.  Record companies were not happy about this and initiated various lawsuits against file sharing networks and individual users.

In 1984, the Supreme Court issued a ruling in Sony Corporation of America v. Universal City Studios, Inc., 464 U. S. 417.  In the 1970’s, the Sony Corporation began marketing the Betamax videocassette recorder, which allowed home recording of television programs.  Several holders of copyrights on televised programs brought an action seeking injunctive relief and damages for copyright infringement.  The Court ruled that the marketing of videocassette recorders does not infringe on the copyrights of recorded works.  In particular, the Court held that when a device has a substantial noninfringing dimension, the fact that it facilitates some infringement will not establish contributory infringement.  As a result of this ruling, manufactures are able to produce such products as VCR’s, DVD recorders, and MP3 Players (to name a few) without fear of being held contributorily and/or vicariously liable for infringing use that may be associated with such products.

Many people are familiar with the Napster case [A & M Records, Inc. v. Napster, 239 F. 3d 1004 (CA9 2001)].  Members of the music industry brought suit against Napster for alleged copyright infringement of their musical works.  Please read the following summary of the Napster case.  It will give you some background information on the copyright infringement issues involved in the case.

This all leads us to the Supreme Court decision in MGM v. Grokster, 545 U.S. 913 (2005).  The defendants in the case, Grokster and Stream Cast Networks, are the creators of the Morpheus software.  The Court of Appeals relied on the holding in Sony to rule that Grokster could not be held contributory liable for copyright infringement of third parties using their services.  However, the Supreme Court reversed the Court of Appeals ruling.  Please skim through the Grokster decision [no, don't skim it; read it -- JTW].  The question to think about is: under what circumstances can the distributor of a product capable of both lawful and unlawful use be liable for the acts of copyright infringement by third parties? What does it mean for a product to be capable of commercially significant non-infringing uses? (You may want to skim through this amicus brief filed in the Grokster litigation by musical artists in support of Grokster, to help shield light on those two questions).  Further, what do you think about Justice Breyer’s reading of the Sony case in his concurring opinion in Grokster? Do you think the Grokster case was decided properly?  What do you think about the doctrine of “inducement” and the effects it had on the Supreme Court decision?  

    Now skim through this copyright information page that Lime Wire has for its users to read.  Is this enough to shield Lime Wire from “inducement” and/ or claims of contributory or vicarious liability?  Why or why not?

    In July 2003, the Recording Industry Association of America (RIAA) announced it would begin to sue individuals who use file-sharing software.  On September 8, 2003, the recording industry began filing a wave of lawsuits against individual file-sharers.  Please read the following materials:

1)  How Not To Get Sued For File Sharing
2)  a brief filed by SBC in RIAA v. SBC Internet Communications, (D.D.C. No. 03-MC-1220); please read starting from pg. 29 of the brief downwards
3)  Top 5 Myths About Downloading Internet Music
4)  The Internet Debacle, An Alternative View
5)  How To Avoid Getting Sued By The RIAA
6)  Downloader “Doe” Fights RIAA

What are your thoughts on all of this?  Is this the right approach for RIAA to take?  How do you feel about the RIAA issuing subpoenas to ISP’s so that they can uncover information on users?  If you download music illegally, will any of these articles change your mind? 

There have been many proposals concerning P2P reform.  Collective Blanket Licensing is one such proposal, where right holders to copyrighted music works would form a collective blanket organization to offer consumers, for a flat fee, a license to access their works.  Please read pages 18-21 of the following paper: Assessing The Impact Of Policy Changes On Potential Online Business Models In The Music and Film Industries.  Also, read this article that talks about the previous paper: Collective Blanket Licensing: Simple and Usable?  How do you feel about Collective Blanket Licensing?  Is it a practical solution to a complicated problem?  What would you suggest?