Course No.: 9200 710 801
Course ID:  17261
Tu 6:30-9:30 p.m.
Room W-215
Professor Jay Dratler, Jr.
Room 231D (IP Alcove)
(330) 972-7972
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Notes and Questions on Napster (Section 512 issues)

1.  This court's description of how the Napster service works is omitted.  If you are unfamiliar with Napster or want to refresh your memory, see the Ninth Circuit's opinion in A&M Records, Inc. v. Napster, Inc.

2.  The court wrote this decision in response to Napster's motion, as defendant, for summary judgment in its favor.  It denied Napster's motion, requiring Napster to go to trial and prove its entitlement to a Section 512 defense.  Does that make the court's conclusions more or less reliable as precedent in later cases?

The court notes that the Section 512 issue is one of first impression.  Did Napster really have much of a chance of winning this motion?  Why do you suppose Napster made it?  Was it ethical for Napster's attorney to do so?

3.  This case involves two main issues: (1) how to characterize Napster's activities for purposes of applying Section 512, and (2) whether subsection (a) applies to a service like Napster's.  Subsection (n) highlights the first issue by decreeing that each of the subsections (a), (b), (c), and (d) is to be applied separately, without regard to the others, as if it were a separate statutory safe harbor.  Even without subsection (n), wouldn't the manner in which the statute is drafted require courts to decide whether, and the extent to which, the activities of a defendant claiming the safe harbor fell within the detailed descriptions in each of the four subsections (a) through (d)?

Skim over subsections (a) through (d) quickly.  Don't the structure and substance of each subsection depend, at least to some degree, on the precise way in which the Web operates technically today?  Given the rapid rate of technological change, is the Web's manner of operation likely to remain the same for very long?  Consider caching, for instance.  Websites use others' caching services today to provide more rapid responses through "local" mirror images of popular material and so avoid delays and bottlenecks in transmission.  Will caching be necessary in a few years when most or all Web users have high-speed, broadband access?

Is it a good idea to draft a statute in a way that so closely reflects the manner of operation of a technological system undergoing accelerating expansion and technological change?  Do the federal-common-law doctrines of vicarious and contributory liability require, as does Section 512, a detailed parsing of exactly how the technological systems operate?  Ought they do do so?

4.  Napster claims that its primary function is to provide something akin to "store and forward" services under subsection (a).  The plaintiff contends that Napster's primary role is to act as an information-location service or "song location" service under subsection (d).  Who is right?  Can both parties be right?  Could subsection (a) apply to some of Napster's operations and subsection (d) to others?  If so, does that make analyzing the application of Section 512 to Napster's operations easy or hard?

Why does Napster want subsection (a) to apply?  Does it differ from the other subsections?  in the number of conditions for its application?  in the remedies available if it applies?

Applying subsection (a) requires looking not only at its text, but also at the special definition of "service provider" in subsection (k)(1)(A), which applies only under subsection (a).  The court never decides whether Napster meets that definition because it concludes that subsection (a) does not apply to Napster anyway.  Does Napster meet that definition?

5.  Why doesn't subsection (a) apply to Napster's activities?  What words and phrases in the statute exclude it?  Does the court put too much weight on the preposition "through" in the phrase "through a system or network controlled or operated by or for the service provider," or is that weight warranted by the thrust of the subsection?  Does the court rely too much on the legislative history's support for the "conduit" theory of Section 512?  Is resort to the legislative history necessary, or is the statute unambiguous?

The central purpose of subsection (a) is to protect operators of the Internet's infrastructure who run such things as the nodes and routers that send data "packets" on their way, automatically and in microseconds, as part of the Internet's normal operation.  Should Napster qualify for the same protection?  When the question is expressed this way, does it take much effort to decide?  Is the statute's attempt to describe normal Internet functions such as routing and caching in exhaustive and abstract technico-legal detail helpful or counterproductive?  Does Judge Patel sound relieved when she says in footnote 3 (her note 6) that she doesn't have to analyze Napster's operations under subsection (d) because Napster didn't ask for summary judgment on that point?   Does she have a right to be?

6.  In the same case on appeal from Judge Patel's preliminary injunction, the Ninth Circuit still declined to probe the entrails of Section 512, saying that the issue was better left until after trial.  See A&M Records, Inc. v. Napster, Inc.  Was that disposition appropriate?  Judges can avoid applying Section 512 if they decide there is no liability under principles of federal common law, i.e., no direct or secondary liability for copyright infringement, because then a "safe harbor" is not needed.  But can they avoid applying Section 512 if they decide, as the Ninth Circuit did on appeal, that federal-common-law liability for vicarious and contributory infringement is likely?

Does the Ninth Circuit's disposition of the Section 512 issue on appeal from the preliminary injunction suggest what its ultimate ruling on Napster's claim for the safe harbor might be?  If Judge Patel is right that Napster has no credible claim to a defense under subsection (a), where can Napster turn?  Even if it convinces the court that subsection (d) shields its "song look-up" operations from liability, will subsection (d) so shield its participation in song transfers?  Won't its very argument under subsection (n) come back to haunt it?   If so, is that poetic justice?

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