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The lesson explores some of the issues that arise in respect of designers and/or operators of p2p networks, or other parties indirectly involved with allegedly infringing activities. We'll talk about the evolution of the music industries' hostility toward new technology, from the player piano to broadcast radio to the VCR to the internet. Turns out we're dealing with pretty much the same story repeating itself throughout most of the 20th century and, so far, all of the 21st.

 

There's only 1 must-read case for this week, though there are a whole bunch of links you can surf to dig deeper. The must read is MGM Studios v. Grokster. In addition to that case, though, I want to talk about the lawsuits against YouTube. To prepare for our discussion, please skim parts of my recent article on "Global Trends in Online Copyright Enforcement: A Non-Neutral Role for Network Intermediaries?"

 

Upfront, what's the difference between the p2p providers and social networks? Tim Wu explains that if the net were a red light district, Napster would be the pimp while YouTube is the hotel. That's because of section 512 of the DMCA and analogous safe harbours in most jurisdictions worldwide.

Now for the more detailed background to all of this ... It was 1908 when the United States Supreme Court ruled, much to the consternation of music publishers, that manufacturers of player piano roles weren't liable for infringing composers' copyrights in the famous case of White-Smith v. Apollo. From there, industry fears moved to radio and VCRs. Then it was p2p networks like the 'sters -- Napster, Aimster, and Grokster -- as well as Kazaa and Limewire, and now it's social network sites like MySpace and hosts of peer-produced content like YouTube.

 

I guess we'll start our main discussion "way back" in the late 90s with the start of the Naspter litigation. That case ended with A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001). FYI you can also check out the Court's summary and the EFF archive on the case. Next came In re Aimster Litigation, 334 F.3d 643 (7th Cir. 2003), which wasn't really all that surprising in light of the ruling in Napster.

 

A more interesting issue was whether decentralized networks could be held liable just like centralized networks could. This was exactly the issue in MGM Studios v. Grokster. Check out the EFF's resources on the case. Grokster was a HUGE case, and we'll spend a lot of time talking about it. The latest development in this saga is RIAA v. LimeWire LLC, 06-CV-5936 (the plaintiffs' complaint; and see William Patry's comments), which we'll also talk lots about. No, wait, update: the latest is Limewire's counterclaim against the RIAA. Actually, no, stop the presses again: LimeWire's counterclaim was just dismissed! And meanwhile, as Sharman (Kazaa) and Grokster settled by promising to go legit, a California judge granted summary judgment against Streamcast (Morpheus) for "inducing infringement" à la the SCOTUS ruling of a few months prior.

 

This is whole p2p network debate is a hot topic around the world. The Dutch have adopted a position quite different from the Americans. Check out BUMA & STERMA v. KaZaA, (Amsterdam C.A. 2002) to see how. The Aussies are on about this also. The big case down under involved Kazaa: Universal Music Australia v. Sharman License Holdings Ltd., [2005] FCA 1242. Are you surprised it settled? Here's an media piece with an update on European and global trends.

There are actually some wonderful papers written recently comparing the legal situation in different jurisdictions. See, for example, Graeme W. Austin, "Importing Kazaa - Exporting Grokster", (2006) 22 Santa Clara Comp. & High Tech. J. 577, and Jane C. Ginsburg & Sam Ricketson, "Inducers and Authorisers: A Comparison of the US Supreme Court's Grokster Decision and the Australian Federal Court's KaZaa Ruling" (2006) 11:1 Media & Arts Law Review. If you wish, compare the Australian law for yourself by looking at Copyright Act 1968 (Cth.), ss. 101, 112E.

 

There hasn't yet been a decision on a case like this in Canada (yet!) but Michael Geist explains what would happen if there were one. The CRIA has, however, threatened bittorrent trackers like Demonoid, and even shut them down. The latest thing to come before the courts in this regard is a preemptive strike by isoHunt, which is trying to get a BC court to declare its activities legal.

 

Speaking of torrents, how do you think BitTorrent would fare in a lawsuit? Note that this technology has been embraced by many major content owners as a legitimate distribution platform. Would that be enough to save the technology, which is also used heavily for sharing music, television programs and movies?

 

For a great analysis of whether or not secondary liability is a good idea, the must-read piece is Mark A. Lemley and R.Anthony Reese, "Reducing Digital Copyright Infringement Without Restricting Innovation" (2004) 56 Stanford L. Rev. 101. That paper is also useful for what it says about levies and alternative compensation models (which are also key topics in this course) so it's definitely worth browsing through.