WASHINGTON -- Napster's future may look dimmer than ever, but the Ninth Circuit's decision could help other file-trading services that have different designs.
When three appeals judges forwarded the case back to a lower court on Monday, they ruled that Napster appeared to violate copyright laws because it could -- but did not -- give the boot to users illegally swapping MP3s.
Concluded the appeals panel: "Napster may be vicariously liable when it fails to affirmatively use its ability to patrol its system and preclude access to potentially infringing files listed in its search index. Napster has both the ability to use its search function to identify infringing musical recordings and the right to bar participation of users."
That appears to leave a legal opening for file-swapping services such as Gnutella and Freenet, which are set up in a way that prevents their creators from easily patrolling the network and deleting MP3 files at the behest of the Recording Industry Association of America's member firms. While MP3 files are stored on users' machines, Napster maintains a searchable list of songs in a central database.
"Other file-sharing systems that are around now or have yet to be invented -- or any form of communications technology -- could conceivably be protected by this ruling," says R. Polk Wagner, an assistant professor at the University of Pennsylvania's law school.
"If you design a system that gives you no power and gives you no knowledge, that gives you a way to avoid indirect infringement," Wagner said. "I don't think you could go into court and say that Gnutella is an infringement."
In its 80 KB opinion, the Ninth Circuit ruled the "mere existence of the Napster system" is not sufficient to run afoul of federal copyright laws. The judges also noted that Napster's ability to police its users is not unlimited: It can't readily tell whether files on Napsterized hard drives are truly what they purport to be.
In other words, it's the design that counts.
Gnutella, like Napster, is a distributed information-sharing network technology -- but unlike its more famous cousin, the Gnutella network does not rely on one central server. Also, while variants like Newtella retrieve and exchange only MP3 files, most Gnutella applications will share any type of file.
Gnutella is explicitly designed to have no central point of control or attack. Its own literature says: "There is no company to sue. No one entity is really responsible for Gnutella."
Some legal experts believe that the Ninth Circuit's ruling means a more tightly coupled network than Gnutella -- as long as the catalogs of files were distributed -- would be legal.
That view is not a unanimous one. Doug Isenberg, editor of gigalaw.com, says that people creating Gnutella-like clients could be at risk.
"I don't think that it's clear from the Ninth Circuit's opinion that the defendants in that situation could avoid liability," Isenberg said, referring to creators of such file-trading applications.
"I think (the defendants would have) good arguments but I think they're unlikely to hold up under the Ninth Circuit ruling," Isenberg said. "Had the creators of Gnutella not created that particular application -- by not creating it in the first place -- the creators would have been able to block that copyright infringement."
Isenberg is talking about the legal theory of vicarious liability, which requires anyone with the right and ability to avoid infringement -- and a direct financial interest -- to take steps to prevent copyright violations from taking place.
Jessica Litman, a professor of law at Wayne State University puts it even more bluntly: "Knowing blindness is actionable."
