JOURNAL OF VOLUME 10 NUMBER 11 INTERNET LAW MAY 2007 EDITED BY DLA PIPER RUDNICK GRAY CARY BitTorrent, Grokster, and Why Entertainment and Internet Lawyers Need to Prepare for the Fair Use Argument for Downloading TV Shows By Charles B. Vincent If a man has good corn, or wood, or boards, or pigs, satellite signal. The ability to watch digital versions of to sell, or can make better chairs or knives, cru- television shows and movies on one’s computer is merely cibles, or church organs, than anybody else, you the next step on the evolutionary visual media ladder. 3 will find a broad, hard-beaten road to his house, As the means to obtain these files through software or though it be in the woods. online distributors continue to improve in their efficiency —Ralph Waldo Emerson, 1855 1 and availability, the copyright holders of these works will Continued on page 7 he Emerson quote has been paraphrased and morphed over time into its better-known pithier counterpart: Build a better mousetrap, and the world will beat a IN THIS ISSUE T 2 path to your door. Modern computer technology BITTORRENT, GROKSTER, AND WHY has not diminished the applicability of Emerson’s simple ENTERTAINMENT AND INTERNET LAWYERS observation. In the music industry, consumers initially NEED TO PREPARE FOR THE FAIR USE ARGUMENT FOR DOWNLOADING TV SHOWS . 1 purchased vinyl LPs, progressed toward cassettes, and By Charles B. Vincent recently turned to compact discs before the digital sound file emerged as the modern way of listening to music. HOW WELL DO YOU KNOW YOUR INTERNET MARKETING PARTNERS? . 3 Likewise, many watched television by adjusting their By Tom Hughes antennas long before anyone began paying for a cable or INTERNET LAW IN THE COURTS . 20 By Evan Brown DEVELOPMENTS IN INTERNET LAW—EUROPE . 24 Charles B. Vincent received a JD from Widener University School of Law By Patrick Van Eecke and Maarten Truyens in 2007. Mr. Vincent externed as the Wolcott Fellow for Vice Chancellor Donald F. Parsons, Jr., in the Delaware Court of Chancery in 2006-07 and will serve as a clerk for Justice Henry duPont Ridgely in the Delaware Supreme Court in 2007-08. While at Widener, Mr. Vincent was one of the Articles Editors for Volume 32 of The Delaware Journal of Corporate Law . The author gratefully acknowledges the assistance of Amy Yeung, Thomas Uebler, and Josh Meyeroff for their helpful comments. Electronic copy available at: http://ssrn.com/abstract=979741 May 2007 JOURNAL OF INTERNET LAW BitTorrent, Grokster, and Why Entertainment and or her high-speed internet connection and cable service, Internet Lawyers Need to Prepare for the Fair Use the fact that cable and premium shows are not “free” in Argument for Downloading TV Shows the sense that the user has to pay for the subscription may Continued from page 1 alter the fair use analysis presented. Where appropriate, however, this article will distinguish this point. continue enforcing their copyright through litigation. For This article presumes that anybody with access to a the copyright holders of television shows, however, the high-speed Internet connection can obtain, with minimal path to protecting the creative work may not be as well- effort, the software necessary to download large files, such as beaten as one may hope. copies of television shows or movies, which can be watched Downloading media through the Internet is now com- and stored on one’s computer. The next section of this arti- monplace. 4 Due to the rapid development of technological cle provides a brief overview of torrent technology, which is infrastructure, however, torrent downloading technology the current and most prolific downloading method used to has abruptly decreased the time required for one to obtain obtain large files today. Because the Supreme Court’s 2005 large media files. As a result, downloading such files has decision in Metro-Goldwyn-Mayer Studios Inc. v. Grokster, gone from impractical to commonplace, and “television Ltd. 11 has solidified certain obligations on behalf of these shows [now] represent the fastest-growing type of files types of distributors in the context of confronting the digital downloaded online.”5 For example, in 2005, one television music piracy problem, this article explores these obligations fan admitted that it took him seven hours to download and its implications on the purveyors of torrent technology. an hour-long episode of a recent season finale that he had The next part of this article assesses the fair use doctrine as missed using his high-speed Internet connection and the it may apply to those programs that facilitate distribution “latest file-sharing software.” 6 In 2006, Apple’s iTunes’ of digital copies of broadcast television show (referred to Web site stated that a comparable 45-minute show would as distributors) and the end users 12 who download them. take 15-20 minutes to download with a high-speed Internet Because of the nature of broadcast television, litigation connection. 7 Other Web sites simply host the video and against the peer-to-peer downloading programs may be suc- stream the content in sections, allowing the user to watch it cessful for the reasons explained, whereas litigation against without downloading, which would yield practically instan- the end users may be distinguishable from the programs taneous viewing gratification. 8 As the technology contin- and prove to become futile. Some practical considerations ues to improve, copyright holders for these shows should be and litigation strategies are explored in the article, and it concerned about rising levels of potential infringement. concludes with the hope that these copyright holders will One outcome, however, is clear: People now consume use the online television consumer base to develop a more digital American television in mass quantities. 9 While marketable and profitable product. the original peer-to-peer downloading programs, such as the all-familiar Napster, were found to have encouraged HOW INTERNET DOWNLOADING copyright infringement by providing unfettered access to MAY DISPLACE THE RERUN digital music files, media downloads now present a novel question as to whether the newer peer-to-peer networks At the beginning of this century, anyone with a high- (such as BitTorrent) or other unofficial content providers speed Internet connection and a computer with a large or resources providing access to digital video files face the hard drive could find and download almost any song that same infringing concerns. The surface answer, of course, is they wanted for free. Most did so through programs like yes, but the distribution of television shows, and particu- Napster without hesitation based on casuistic entitlement larly broadcast television shows, 10 raises legal issues that reasons or the belief that “everyone was doing it.”13 Just five can and will be distinguishable from those raised in the years later, a similar downloading mentality has entered music piracy cases. the television show market.14 Before exploring whether This article purposely leaves open the question of downloading television shows garners the same types of whether the same analysis could apply to downloaded infringement considerations, a brief summary of modern cable and premium channel television shows, such as orig- downloading is necessary. For purposes of basic foundation inal programming from MTV or HBO, as well as syndicat- only, this article focuses on the principal downloading pro- ed shows, which typically are aired originally on broadcast grams that evolved beginning in the early 2000s.15 television and now appear on other broadcast or cable Napster was the first widely used peer-to-peer net- channels. Although the question of fair use may hinge on working system on the Internet. 16 Napster allowed any user whether the service is paid for by the end user and may of its program to connect to its centralized server, which be mooted by the fact that a homeowner has bundled his regularly indexed the combined shared files of any other 7 Electronic copy available at: http://ssrn.com/abstract=979741 JOURNAL OF INTERNET LAW May 2007 user then connected to its system. 17 Thus, if a user, or peer, his file, other end users searching for the same file or files wanted to download a file, Napster’s search engine would will automatically download the incomplete parts obtained provide a link to another user, or peer, who had that file. Its from that user’s computer; and this entire tit-for-tat process software then facilitated the peer-to-peer download. helps to maximize uploading and downloading efficiency. 27 Ultimately, Napster’s centralized server, coupled with Downloading speed also becomes a function of how many its refusal to take sufficient remedial measures to remove users have the file or its component parts on their computers: access to infringing materials, proved its undoing. 18 T o The more people who share, the faster the download. 28 T h e emulate Napster’s success without these same crippling popularity of Cohen’s program, as one reporter puts it, has liability concerns, the next generation of peer-to-peer “transform[ed] the Internet into the world’s largest TiVo.” 29 downloading applications modified the way in which their By means of an example for clarity, assume first that the users could obtain the files that they sought. 19 file to which the end user (A) seeks has 1,000 parts com- Grokster was one such successor program. Unlike prising the whole. If this file were to be downloaded using Napster’s method of indexing its combined user database Napster’s or Grokster’s peer-to-peer program, A would down- to promote easy searching, Grokster’s search engine simply load each of the thousand parts in order from a single peer passed the request to other connected users.