The Next Round for Napster

Though it ruled out what had been most of Napster's case, the Feb. 12 decision by the Ninth Circuit Court of Appeals was not a mortal blow to the peer-to-peer model. But the next round of Napster-inspired lawsuits, some of which are already on the horizon, will soon reveal whether the decision was a one-time strike against a poster child for music piracy--or the beginning of a long crusade against promising technological advances.

By Feb. 23, the Recording Industry Association of America (RIAA) had already sent more than 60 letters to ISPs of servers running OpenNap, an open-source program that uses the Napster protocol to provide similar peer-to-peer indexing. A user of OpenNap first employs any of a number of client programs (like Napster's MusicShare) to open up a hard drive for outside access; a list of contents are then uploaded to the OpenNap server, which does nothing but publish a directory of connected clients and offer a means of searching them. Any downloads are conducted between users, and the files--any file can be shared, not just mp3s--will never pass through the OpenNap system. These servers, which differ only slightly from Web search engines like AltaVista or Google, are now in danger of being shut down under accusations of "contributory copyright infringement"--of being punished for using names resembling "Napster."

The doctrine of contributory infringement is one unique to the copyright code. Refusing to stop illegal activity when you have a financial interest in it is known as "vicarious" infringement, and Napster was probably guilty of that too. But anyone who encourages or assists in the violation of copyright can be guilty of contributory infringement, a label that may become a dangerous catchall.

When the Ninth Circuit found Napster liable for contributory infringement, it fortunately reiterated the Supreme Court's standard that devices capable of substantial non-infringing uses are still legal. The Napster protocol, which is merely a set of instructions for sending and receiving files, is no more illegal than the Windows "copy file" function. Beneficial, content-neutral technologies can easily be hijacked by pirates who find them useful, but they should not be banned for that reason alone. Otherwise, VCR's and tape decks would have been banned long ago for contributing to copyright infringement--as they almost were until the Supreme Court stepped in. Even if their manufacturers knew what the devices would be used for, the capability of non-infringing use is stillkey. After all, in the electronic world, a test of intent becomes meaningless; the encryption program written to protect human rights activists can instead be used by terrorists, and vice versa.

But the court did require Napster to remove any songs copyrighted by recording companies. This is a tall order, given that Napster users name their own files and that "MysteriousWays.mp3" could be anything from U2 to static to uncopyrighted German techno. A poorly structured injunction could mean that Napster will be forced to shut down its service, unable to bear the costs of compliance.

In imposing these costs, both the trial court and the Ninth Circuit neglected to address what was Napster's most serious argument--that publishing a directory is a protected act of speech. Copyright laws and the First Amendment often seem to conflict--publishing a book or recording a song are expressive acts --but their conflicts are normally addressed by "fair use" exemptions, which allow for portions of copyrighted works to be quoted or commented on. Downloading copyrighted music is not fair use, and so the Napster courts saw no need to address Napster's other First Amendment concerns.

But the category of fair use does not take care of the conflicts between free speech and contributory copyright infringement, which the Supreme Court has never addressed in a non-commercial environment. OpenNap isn't engaged in any commercial activity: it merely reports on the status of connected servers. If a newspaper reported that "A large pile of CD's ready for copying have been sighted on a park bench on 53rd St.," no one would dream of taking them to court--but if it wrote that "The file foo.txt can be found on a server at 140.247.83.245," this might constitute contributory infringement and must be policed.

By ignoring the protections granted to speech, the Ninth Circuit created a dangerous gray area for new Internet protocols. How useful must a piece of information be before it becomes illegal? How effective must a search tool be before it becomes contributory infringement? If I duplicate copyrighted text on my website, could Google be sued for indexing it--or, God forbid, for keeping a cached copy on its own servers? There is no room for gray areas in this body of law. Either an act is contributory infringement or it isn't, and the failure to draw clear lines creates chilling effects that benefit the copyright industry--it can afford to lose a costly lawsuit or two, while most software developers can't.

ISPs are already required to respond to requests to remove copyrighted materials--so copyright authors already have a remedy. Burdening search engines and other indexing services with a responsibility to filter their results through an RIAA-approved list would only slow their searches and dragoon their employees into the service of the copyright industry.

And the cost of this constant monitoring will be measured in lost innovations. What engineer would have been willing to design the content-neutral HTTP protocol that undergirds the Web if it had been viewed with the same suspicion as the content-neutral OpenNap protocol is today? Both protocols are capable of non-infringing use, and new ways of sharing information, regardless of the motives of their developers, offer the potential for vast social benefits.

Our society makes a distinction between speech and act, and for good reason. Whether Napster itself survives is of concern only to the company's employees and investors. But using the costs of compliance as a weapon against search engines --punishing the providers of information for its misuse--will only limit our access to information and should concern everyone.

Stephen E. Sachs '02 is a history concentrator in Quincy House. His column appears on alternate Tuesdays.