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The Stakes of Contributory Infringement 517
name of a song or an artist as the object of the search. The form is then
transmitted to a Napster server and automatically compared to the MP3 file
names listed in the server’s search index. Napster’s server compiles a list of
all MP3 file names pulled from the search index which include the same
search terms entered on the search form and transmits the list to the searching
user. The Napster server does not search the contents of any MP3 file; rather,
the search is limited to “a text search of the file names indexed in a particular
cluster. . . .
D. Transferring Copies of an MP3 file: To transfer a copy of the contents of
a requested MP3 file, the Napster server software obtains the Internet address
of the requesting user and the Internet address of the “host user” (the user with
the available files). See generally Brookfield Communications, Inc. v. West
Coast Entm’t Corp., 174 F.3d 1036, 1044 (9th Cir.1999) (describing, in detail,
the structure of the Internet). The Napster servers then communicate the host
user’s Internet address to the requesting user. The requesting user’s computer
uses this information to establish a connection with the host user and
downloads a copy of the contents of the MP3 file from one computer to the
other over the Internet, “peer-to-peer.”
[T]he district court concluded that Napster harms the market in “at
least” two ways: it reduces audio CD sales among college students and it
‘raises barriers to plaintiffs’ entry into the market for the digital downloading
of music. . . .” †
What would you need to prove in order to find liability? What would be the
defenses? How would you frame your argument? What would be your opening 60
seconds if you were the lawyer arguing either for the plaintiff or the defendant?
[These are the crucial moments when you have a chance to frame the issue before
the judges interrupt. If you are lucky.] Which, if any, of the frames discussed in
Chapter One could each side use? On what precedents would you rely? What policy
arguments would you stress? What “escape hatches” would you offer to a court
contemplating the possibility that Napster might not be liable? What vision of doom
would you conjure up were the court not to find Napster liable?
1.) The Stakes of Contributory Infringement
As Tiffany v. eBay showed in the trademark context, contributory infringement assumes
particular importance in the world of the internet. Or perhaps, more broadly, in the
world of devices and networks which give powers to individuals that were formerly held—
to any significant extent—exclusively by large commercial intermediaries. The internet
allows any individual to set up a global storefront. Your laptop or tablet or phone can
implicate many of the rights in § 106 of the Copyright Act—a dramatic technologically
enabled change to the legal significance of your actions. You can copy, distribute, and
modify existing works—indeed on a daily basis, you would be hard put not to. At the same
time, these devices and networks also allow an unprecedented flowering of creativity,
innovation and disruptive business models. From Amazon and eBay to blogs, Wikipedia,
open source software and the world of social media, the devices and networks of the digital
†
A&M Records v. Napster, 239 F.3d 1004 (9th Cir. 2001).