Chapter 3: Targeted Attacks on the US Secondary Liability Law
The previous chapter told the story of the rise and fall of Napster, the radical technology that opened the floodgates to widespread online copyright infringement of sound recordings and music. By one count, it attracted 70 million registered users during its two-year lifespan.1 Since it had created such a vast pool of users with rapacious appetites for fast, free access to music, switching off that network created an obvious void. Happily for those users, there were plenty of other developers eager to accommodate their needs. Whilst the concept of sharing files via P2P was revolutionary, the software code necessary to implement it was not. Even before Napster’s network was shut down, a multitude of competitors had been released, each jostling with each other to facilitate the most infringement. Within two months of its demise, at least six of Napster’s successors had already been downloaded more than five million times apiece.2 Unlike Napster’s Fanning, the most sophisticated and ambitious of these successors were highly conscious of the intricacies of the secondary liability law and how it was likely to interact with their software code. This group used the decision of the Ninth Circuit in Napster as a “roadmap” to avoiding liability. That map read: “[d]on’t be at the center of the p2p network and be sure not to have any ability to police the network. Intentionally relinquish control over the software.”3 Having identified the vulnerabilities inherent in Napster’s code, this second group came up with evermore ingenious ways of...
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