Advanced Copyright Issues on the Internet - Fenwick & West LLP

These suits presented a potential extension of the legal theories on which the Napstercase relied in view of technical differences in the peer-to-peer architecture used by theStreamCast, Kazaa, and Grokster services, as opposed to the Napster service. As discussed inSection III.C.2(c)(1) above, the Napster service relied on a central index of files available forsharing stored on servers maintained and controlled by Napster. This index enabled Napster toblock allegedly infringing files by searching the filenames available through the index. Bycontrast, the StreamCast, Kazaa, and Grokster services did not operate based on such a centralindex. Rather, the indexes of files available for sharing were distributed across users’computers.Specifically, according to the complaint filed in the class action case, each of theStreamCast, Kazaa, and Grokster services initially relied on software called FastTrack, originallydeveloped by a group of Scandinavian programmers known as Consumer Empowerment BV,later renamed Kazaa BV. 1379 Kazaa BV launched the first of the three services (the Kazaaservice) on July 28, 2000 by publicly releasing its FastTrack software on its web site. 1380 TheFastTrack software interacted with Kazaa BV’s server side software to enable Kazaa users toconnect their computers to one or more central computer servers controlled and maintained byKazaa BV. 1381 After the central server registered, identified, and logged in the user, the Kazaaservice connected the user to a “SuperNode.” A SuperNode is a computer with a highbandwidthconnection that is operated by another user already connected to the service. After auser connected to a SuperNode, these “local search hubs” compiled an index of digital filesbeing offered by the user for downloading by other service users. The FastTrack software alsoenabled users to search for and import preexisting libraries of music files (such as libraries thatusers built using Napster) to make them available through the service. In response to a searchrequest, the SuperNode reviewed its own index of files and, if necessary, the indices maintainedby other SuperNodes. It then displayed the search results to the user to permit the user todownload any files displayed by the search. 1382 Hence the index of files available at any point intime were distributed throughout various SuperNode computers maintained by the users of thenetwork, not Kazaa BV.Any Kazaa service user could become a SuperNode by choosing that option in theFastTrack software, and users were encouraged to do so. Kazaa BV’s central servers maintainedcommunications with all SuperNodes and assisted in administering the Kazaa service. 1383 Therole of Kazaa BV’s central servers in the operation of the service was a key basis upon which theplaintiffs asserted contributory and vicarious copyright liability. The Kazaa service continuouslymonitored its thousands of users to keep track of when they logged on and off. As soon as a userlogged on, that user’s music files were inventoried and added to the distributed database, and1379 Class Action Complaint for <strong>Copyright</strong> Infringement, Leiber v. Consumer Empowerment, Civ. No. 01-09923(C.D. Cal. Nov. 19, 2001) 25-26.1380 Id. 27.1381 Id. 31.1382 Id. 32.1383 Id. 33.- 308 -