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Contributory Copyright Infringement and Peer-to-Peer Networks
The second labor of Hercules was to kill the monstrous nine-headed Hydra. When Hercules struck off one of the Hydra's heads, two new ones grew forth in its place. The entertainment industry's fight against its modern menace, peer-to-peer file sharing networks, presents no lesser task. The record companies successfully shut down Napster (see A&M Records, Inc. v. Napster, Inc., 114 F. Supp. 2d 896 (N.D. Cal. 2000), aff'd in part, rev'd in part, 239 F.3d 1004 (9th Cir. 2001)) and Aimster (see In re Aimster Copyright Litig., 2002 U.S. Dist. LEXIS 17054 (N.D. Ill. 2002)) only to witness the instant emergence of Gnutella, Grokster, Kazaa, Morpheus, and similar services (as well as the re-emergence of Aimster, now known as Madster). We know, of course, that Hercules completed his second labor after figuring out that he could prevent growth of the new heads by burning the wound. However, unlike the Hydra, peer-to-peer file sharing technologies evolve quickly and swiftly adapt to changed circumstances. Thus, Hollywood's plaintiffs are likened more to Sisyphus (who was condemned to an eternity of pushing the rock up the mountain only to have it fall down again) than to Hercules. The most recent example is the decision in Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 2003 U.S. Dist. LEXIS 6994 (C.D. Cal. April 25, 2003).
The Decision in MGM v. Grokster
The plaintiffs in the two consolidated cases, the major motion picture studios and record companies (in the original MGM Studios, Inc. v. Grokster, Ltd. case) and a class of professional songwriters and music publishers (in the original Leiber v. Consumer Empowerment BV case), brought an action for contributory and vicarious copyright infringement in connection with the sharing of music, movies and other digital content in certain peer-to-peer networks. Peer-to-peer networks consist of certain network technology and a client software or 'node' that allows users to connect to each other. The defendants, Grokster, Ltd., StreamCast Networks, Inc., Kazaa BV, and Sharman Networks, each distribute peer-to-peer software. Initially, Grokster, StreamCast and Kazaa all used the proprietary FastTrack network technology (developed by the Dutch founders of Kazaa and licensed through another entity) and distributed a version of the Kazaa Media Desktop software. StreamCast subsequently developed its own client software called Morpheus and now utilizes the open source Gnutella network technology instead of FastTrack.
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