Academic journal article Santa Clara High Technology Law Journal

Intent: The Road Not Taken in the Ninth Circuit's Post-Napster Analysis of Contributory Copyright Infringement

Academic journal article Santa Clara High Technology Law Journal

Intent: The Road Not Taken in the Ninth Circuit's Post-Napster Analysis of Contributory Copyright Infringement

Article excerpt

In July 2001, the Ninth Circuit famously slapped Napster, (1) the company that facilitated free sharing of songs electronically over the Internet, with liability for massive infringement by end-users. (2) As a result, Napster's free service for downloading songs came to an end. (3) The debate about free file sharing and the extent of liability by technology providers, however, did not.

Since Napster, new technology providers have emerged, offering different technologies to enable the free trading of copyrighted, unlicensed songs and movies on the Internet. The movie and music industries decry this trading as "piracy" of their copyrighted works, claiming a loss between $700 million to several billion dollars annually. (4)

The Napster decision imposed liability for copyright infringement based on principles of third-party liability. (5) The Ninth Circuit's ruling last year in Metro-Goldwyn-Mayer Studios v. Grokster, Ltd. (6) marked the most recent decision about whether to hold network operators and software distributors liable for the trading of songs and movies on the Internet by millions of users. (7)

Like Napster once did, the defendants in Grokster seek to facilitate users' exchange of copyrighted material freely over the Internet. (8) The Grokster defendants market themselves as the "next Napster" or "Alternative to Napster Network." (9) Ninety percent of the material traded on their networks allegedly constitutes infringing, copyrighted material. (10) If indeed true, the Grokster defendants effectively achieve precisely what Napster was enjoined from doing. Nevertheless, on a motion for summary judgment, the Ninth Circuit reached a very different result in assessing liability in Grokster than it did in Napster, based primarily on structural differences in the technologies at issue. (11)

The Grokster decision brings to the forefront the issue of intent, as an evidentiary and conceptual matter, in deciding liability for contributory copyright infringement. In essence, the Grokster decision deems intent-related evidence irrelevant as a matter of law, in assessing third-party liability for copyright infringement. This occurs because the analysis lends no significance to a host of record evidence proffered by the copyright holders in their summary judgment motion to demonstrate that the defendants actively and knowingly encourage infringing activity on their systems.

The issues of liability presented by the Grokster litigation, now pending before the United States Supreme Court, (12) will affect many Internet participants, not simply the parties in the lawsuit. The defendants in Grokster are but a few of the many players vying to profit from a system that allows for the free trade of song and movie files to Internet users. (13) Moreover, the implications of a ruling in this case extend beyond the movie and music industries, because they can affect a host of e-commerce and other technology-related matters concerning content over the Internet.

In order to rule in Grokster, the United States Supreme Court likely will have to grapple with permutations of intent left unresolved by the ambiguities of its twenty-one year old decision in Sony Corp. of America v. Universal Studios, Inc.. (14) The Sony decision limits liability in circumstances where a product may be used partly for infringing and partly for noninfringing purposes. This article seeks to provide a context for understanding the controversy concerning third-party copyright liability that has emerged in the wake of the Sony decision and unfolded over the Internet.

More specifically, Part I of this article explains the business landscape of songs and movies delivered over the Internet. In Part II, this article discusses the legal framework of the Grokster decision. It explains the differences between the Ninth Circuit's analysis in Grokster and Napster, along with a contrasting approach set forth by the Seventh Circuit in In re Aimster Copyright Litigation. …

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