Copyright's Digital Dilemma Today: Fair Use or Unfair Constraints? Part I: The Battle over File Sharing

Bulletin of the American Society for Information Science & Technology, Oct/Nov 2003 by Strickland, Lee S

Lastly, are the affirmative defenses of waiver, implied license and copyright misuse applicable? Again, the answer was "no." Just because the music industry has promoted MP3 technology for legal purposes does not mean that it has waived its intellectual property interests, including its authority to exercise exclusive control over the creation and distribution of MP3 files of its music.

In conclusion, the 9th Circuit found infringement on the part of Napster but remanded only to require the plaintiffs to provide notice to Napster of copyrighted works and files prefatory to Napster's burden and duty of disabling access to the offending content. And, without question, the Court reiterated that Napster bore the burden of policing its system within the technical and practical limits of that system. In relatively quick succession, an injunction followed in March 2001 requiring both parties to take action to identify and remove infringing materials, the company voluntarily took down its servers to attempt compliance and the company failed in its efforts to re-invent itself as a subscription-based, pay-for-download service despite an abortive partnership and later sale to German media giant Bertelsmann AG.

The Stage Shifts - Decentralization

With the demise of Napster, a bevy of new music-trading software products emerged (e.g., Aimster, Kazaa and Morpheus) that were based on a true peer-to-peer architecture with no central control and no central index. Here, when users download the software, they become members of this network and can share files directly with other members -whether those files are innocent family photographs or copyrighted music. And, as might be expected, the recording and movie industry lost no time in bringing federal lawsuits against Aimster (later renamed Madster) in Chicago and Morpheus (and others) in Los Angeles.

But there were legal problems based on the technology at issue - couldn't these services more clearly claim the Sony defense since they had no knowledge of and control over individual trading? Remember that in Sony, the Supreme Court held that the sale of VCRs did not constitute contributory infringement even though Sony knew in general that the machines could be used and perhaps were being used to infringe copyright. This was because the VCRs were capable of both infringing and "substantial noninfringing uses" and the fact of generic or constructive knowledge of infringing activity was insufficient to give rise to liability given only the sale of the devices. The clear holding was that the mere sale of items in commerce does not constitute a civil wrong if the items are capable of appropriate uses. Indeed the courts have often used the analogy of "sexy lingerie and prostitution" to explain the logic underlying this decision.

In any event, the cases moved forward to very recent fruition. First came the Aimster litigation by the Recording Industry Association of America (RIAA) and the P2P service was shut down in short order by the U.S. District Court in Chicago on a preliminary injunction pending trial. And that decision was promptly upheld in July by the U.S. Court of Appeals for the 7th Circuit. Why was this so clear despite the Sony defense? Quite simply, Aimster suffered from their bravura and was quite unable to demonstrate any legal issues of their service as stated by the appeals court: "Far from doing anything to discourage repeat infringers of the plaintiffs ' copyrights, Aimster invited them to do so, showed them how they could do so with ease using its system and by teaching its users how to encrypt their unlawful distribution of copyrighted materials, disabled itself from doing anything to prevent infringement."