The dawn of peer-to-peer networks and the subsequent rise of file sharing over the Internet have proved to be a considerable threat to the revenues of the Recording Industry Association of America (“RIAA”) and the international music community.  While early music downloading across peer-to-peer networks on the Internet was largely limited “to college students with access to fast pipes and techno geeks sufficiently driven to search the Net for the latest Phish bootlegs,”[i] the market for illegally downloaded music taken from file sharing websites has expanded to astronomic proportions and continues to do so even at present.[ii]  The results of this expansion proved doubly costly to the RIAA, as the record industry has suffered reduced music sales and has simultaneously attempted to wage a multifaceted war against file sharers and their networks.[iii]  Yet, the RIAA’s strategies have ultimately damaged the association’s reputation and also the music industry generally.  Due to their choice of targets, “[t]he media and public have cast the RIAA as a villain that sues single mothers and even the deceased.”[iv]  Despite pursuing their cause even to the extent of suffering harms to their reputation, the RIAA’s efforts have proven largely fruitless as record sales have continued their downward trend.[v]

The failure of the RIAA to properly handle the issue of file sharing is evident from the record industry’s depressed financial statistics[vi] and the general public’s outcry against the association’s tactics.[vii]  This Note addresses some of the alternative (and potentially more popular) methods available to the RIAA in its efforts to overcome the rise of illegal file sharing…

Andrew Eichner

When the United States Supreme Court hears Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd. (04-480) on March 29^th, it has an opportunity to consider for the first time, the rights, responsibilities and liabilities of p2p network creators and their users, the content industry, and ISPs. Over 25 of the world’s largest entertainment conglomerates joined together in petitioning the Supreme Court for a grant of certiorari.1 Petitioners characterize this case as “one of the most important copyright cases ever to reach this Court. Resolution of the question presented here will largely determine the value, indeed the very significance, of copyright in the digital era.”2 Respondents agree that the stakes are considerable, observing that this “case raises a question of critical importance at the border between copyright and innovation: when should distributors of p2p software—a multi-purpose tool—be held liable for infringements that may be committed by end-users of the tool?”3

This case will review the Ninth Circuit ruling that p2p software providers do not have secondary liability for those copyright infringements possibly committed by actual direct users of the p2p software.4 The Ninth Circuit followed the paradigm set forth in Sony Corp. of America v. Universal City Studios, Inc.,5 which drew on the staple article of commerce doctrine from patent law.6 Under this rule, it is “sufficient to defeat a claim of contributory copyright infringement if the defendants showed that the product was capable of substantial or commercially significant noninfringing uses [and thus was a fair use].”7 The Ninth Circuit first followed this rule in the Napster cases.8 The court reasserted the Sony/(Betamax) rule in Grokster, concluding that since the p2p software was capable of substantial or commercially significant noninfringing uses, the copyright owners must show the software distributors had reasonable knowledge of specific infringing files.9 Relying on this, it found that since Respondents merely offer for download distributed file-sharing software (p2p software) that is capable of a myriad of uses, including downloading infringing and noninfringing content, no liability could attach as they (1) lacked knowledge of the infringing activity; and (2) did not materially contribute to the infringing conduct.10 Respondents offered nothing more than executable distributed file-sharing software; they provided neither support, nor storage, nor directory services that would have created a basis for secondary liability.11

Margo E. K. Reder*