Part 9 (2/2)

So, if Napster's users were not infringing copyright law in the first place--at least until the record companies came up with convincing evidence of market harm--because their copying was noncommercial, then Napster could hardly be guilty of contributory infringement, could it? There would be no infringement at all!

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You could see Mr. Boies's arguments as simple equations between the cases.

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* Noninfringing uses such as recording public domain films and ”time-s.h.i.+fting” programs are equivalent to noninfringing uses such as the New Artists program or sharing public domain music (and maybe ”s.p.a.ce-s.h.i.+fting” one's own music?); or * Private noncommercial videotaping is equivalent to private noncommercial file sharing. Both are presumptively fair uses.

* Either way, Sony=Napster and Napster wins.

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Napster did not win, of course, though when the judges handed down their decision it was clear they had been paying attention to Mr. Boies, at least enough to make them very wary of tampering with Sony. They claimed that they were upholding that case, but that Napster could be liable anyway. How? Because there was enough evidence here to show that the controllers of Napster had ”actual knowledge that specific infringing material is available using its system, that it could block access to the system by suppliers of the infringing material, and that it failed to remove the material.” There was indeed evidence that Napster knew how its system was being used--an embarra.s.sing amount of it, including early memos saying that users will want anonymity because they are trading in ”pirated music.” Then there were nasty circ.u.mstantial details, like the thousands of infringing songs on the hard drive of one particular Napster employee--the compliance officer tasked with enforcing the Digital Millennium Copyright Act! (The recording company lawyers waxed wonderfully sarcastic about that.) 73

But despite the ludicrously dirty hands of Napster as a company, lawyers could see that the appeals court was making a lot of new law as it struggled to find a way to uphold Sony while still making Napster liable. The court's ruling sounded reasonable and clear, something that would only strike at bad actors while paying heed to the Sony Axiom and the a.s.surance of safety that the rule in Sony had provided to technology developers for the previous twenty years. But hard cases make bad law. In order to accomplish this piece of legal legerdemain, the court had to alter or reinterpret the law in ways that are disturbing.

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The first thing the court did was to reject the argument that the ”sharing” was private and noncommercial. As to the idea that it is not private, fair enough. Sharing one's music with fifty- four million people does not sound that private, even if it is done for private ends, in private s.p.a.ces. What about noncommercial? Embracing some earlier rulings on the subject, the court said a use was ”commercial” if you got for nothing something for which you would otherwise have to pay. On the surface this sounds both clever and reasonable--a way to differentiate home taping from global file sharing--but the argument quickly begins to unravel. True, the Betamax owners could get TV shows for free just by watching at the regular time. But they could not get a copy of the show for free at the moment they wanted to watch it. That was why they taped. One could even argue that Napster users would have access to most songs over the radio for free. But lawyers' quibbling about which way the rule cuts in this case is not the point. Instead, we need to focus on the change in the definition of ”commercial,” because it ill.u.s.trates a wider s.h.i.+ft.

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Remember, a finding that a use is ”noncommercial” makes it more likely that a court will find it to be legal--to be a fair use.

The old test focused mainly on whether the motive for the copying was to make money. (A different stage of the inquiry concerned whether there was harm to the copyright holder's market.) The Napster court's test concentrates on whether the person consuming the copy got something for free. Instead of focusing on the fact that the person making the copy is not making money out of it--think of a professor making electronic copies of articles for his students to download--it focuses on the presumptively dirty hands of those who are ”getting something for nothing.” But lots of copyright law is about ”getting something for nothing.”

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To put it differently, one central goal of copyright is to limit the monopoly given to the copyright owner so that he or she cannot force citizens to pay for every single type of use. The design of the law itself is supposed to facilitate that. When ”getting something for free” comes to equal ”commercial” in the a.n.a.lysis of fair use, things are dangerously out of balance.

Think back to Jefferson's a.n.a.logy. If I light my candle at yours, am I getting fire for free, when otherwise I would have had to pay for matches? Does that make it a ”commercial” act?

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Having dismissed the claim that this was noncommercial sharing, the court then reinterpreted the Sony decision to allow liability when there was ”actual knowledge” of specific copyright violations, an ability to block access by infringers, and a failure to do so. Neither side was entirely happy with this ruling, but the record companies believed--rightly--that it would allow them effectively to shut Napster down. Yet the Napster ruling only postponed the issue. The next set of file sharing services to be sued after Napster were even more decentralized peer-to-peer systems; the Napster court's reinterpretation of Sony would not be able to reach them.

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The peer-to-peer file sharing service called Grokster is a relatively typical example. Unlike Napster, Grokster had no central registry. The system was entirely run by the individual ”peer” computers. Because the system was designed this way, the people who made and distributed the software had no knowledge of specific infringing files. The users were doing the searching, indexing, and storing, and Grokster had no ability to control their behavior. For those reasons, a court of appeals held that Grokster was not liable. As in Sony, the system had substantial noninfringing uses. Lots of interesting content was traded on Grokster with the copyright holder's consent. Other material was in the public domain. Grokster made money by streaming advertis.e.m.e.nts to the users of its software. The movie companies and record companies saw this as a flagrant, for-profit piracy ring. Grokster's response was that like the makers of the VCR, it was simply providing a technology. Its financial interest was in people using that technology, not in using it for illicit purposes--though, like the VCR manufacturer, it would profit either way. The court of appeals agreed. True, the majority of the material traded on Grokster was illicitly copied, but the court felt that it could not give the recording or movie companies control over a technology simply because it allowed for easier copying, even if most of that copying was illegal. As I tried to point out in the section on the Sony Axiom, that line of thought leads to copyright holders having a veto over technological development.

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It was at this point that the Supreme Court stepped in. In the case of MGM v. Grokster,30 the Supreme Court followed the line of the Napster court, but went even further. The Court created a new type of contributory copyright infringement--while apparently denying it was doing so. Grokster and its fellow services were liable because of three different kinds of evidence that they had ”intended” to induce copyright violation. First, they were trying ”to satisfy a known demand for copyright infringement.”

This could be shown by the way that they advertised themselves as alternatives to the ”notorious filesharing service, Napster.”

Second, the file sharing services did not try to develop filtering software to identify and eliminate copyrighted content--though this alone would not have been enough to make them liable. Finally, their advertising-supported system clearly profited by high-intensity use, which they knew was driven in the most part by illicit copying. This too would not have been enough by itself, the Court added, but had to be seen in the context of the whole record of the case.

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Let me be clear. I wept no tears for Napster, Grokster, and their ilk. I see no high-minded principle vindicated by middle- cla.s.s kids getting access to music they do not want to pay for.

It is difficult to take seriously the sanctimonious preening of those who cast each junior downloader of corporate rock as a Che Guevara, fighting heroically to bring about a new creative landscape in music. (It is almost as hard to take seriously the record industry executives who moralistically denounce the downloading in the name of the poor, suffering artists, when they preside over a system of contracts with those same artists that makes feudal indenture look benign.) The file sharing companies themselves were also pretty unappealing. Many of the services were bloated with adware and spyware. True, some of their software engineers started with a dewy-eyed belief that this was a revolutionary technology that would break the record companies and usher in a new era of musical creativity. Whether one agrees or disagrees with them, it is hard--for me at least--to doubt their sincerity. But even this quality did not last long.

For most of the people involved, the words ”stock options”

worked their normal, morally debilitating magic. In internal company correspondence, attacks on the hypocrisy of the music companies and defenses of a democratic communications structure imperceptibly gave way to discussions of ”customer base,” ”user experience,” and ”saleable demographics.” I care little that Napster and Grokster--as individual companies--lost their specific legal battles. There are few heroes in this story. But if we had to rely on heroes, nothing would ever get done.

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I do care about the technology behind Napster and Grokster--about the kind of decentralized system it represents. I also care about the principle I identified as the Sony Axiom--a principle that goes far beyond music, peer-to-peer systems, or the Internet as a whole. The Supreme Court's decision in Grokster could have been much worse. But it still offers a modest threat both to that technology and to that axiom.

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What is so great about peer-to-peer systems? We talk about ”cheap speech” on the Internet, but bandwidth is actually expensive. If one is talking about music or video files, and one wishes to speak to many people in a short period of time, one vital way to have cheap speech is over peer-to-peer networks. If many of your viewers or listeners are willing to become broadcasting stations as they watch, you can cheaply reach a million people in a short period of time with your video of abuse in Abu Ghraib or your parody of political leaders. You do not need to rely on a broadcasting station, or even on the continued existence of ent.i.ties such as YouTube, which face their own legal worries. By making your listeners your distributors, you can quickly reach the same number of ears that the payola-soaked radio waves allow the record companies to reach.

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