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RIAA targets post-Napster MP3 sharers

Will have a much tougher time bringing them to heel

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The Recording Industry Ass. of America has sued peer-to-peer MP3 file sharing services FastTrack, Grokster and MusicCity.

We can't say we're entirely surprised. Having neutered Napster, it was only a matter of time before the RIAA targeted other networks designed to allow at best music buyers to share songs and at worst lots of other people to obtain tracks without paying for them.

Indeed, an internal memo recently leaked to Web site Dotcom Scoop, noted the music industry organisation's intent to target the three networks with copyright infringement suits.

"We have solid claims against FastTrack, MusicCity, and Grokster of secondary liability for copyright infringement. The claims are not as strong as those against Napster, but they are also not so remote as to be wishful," says the memo, dated 25 September.

All three appear to be quasi-commercial services, with Grokster and MusicCity both using technology developed and implemented by FastTrack. FastTrack itself operates the Kazaa network.

Interestingly, the memo notes FastTrack's apparent willingness to reach an agreement to avoid legal confrontation. If accurate, that appraisal will have led the RIAA to believe FastTrack will settle out of court. And if it alters its technology to protect copyright, that will have a knock-on effect on the other two companies' services.

However, Dotcom Scoop's RIAA source suggests that the case is weak and that it will only succeed if FastTrack caves in.

At issue is the degree to which file sharing is facilitated by the companies' computers. Napster was relatively easy to prosecute because it acted as a conduit for file transfers - in other words, it was complicit in the copyright infringement. That's not the case with true peer-to-peer systems like Gnutella. The RIAA's action against FastTrack and co. will be all the stronger if it can show there is a clear client-server element to the system.

Dotcom Scoop's source suggests that it will only be able to do so with FastTrack's assistance, which implies that the current suit is more about brow-beating FastTrack than clearly proving contributory copyright infringement. The RIAA can't itself find out too much about FastTrack's code, because the software uses encryption and any attempt to crack that protection would put the RIAA in hazard of the Digital Millennium Copyright Act, which forbids such action (though that didn't stop it from successfully giving the similarly protected Aimster a tough old time).

Only with FastTrack's help can the organisation get past the encryption legally. And since FastTrack - distinct from Kazaa - is a software company not a sharing service, the RIAA hopes that it can be persuaded to co-operate.

The RIAA is also pursuing all three companies for vicarious copyright infringement, which boils down to not doing enough to prevent copyright infringement on a supervised network. The RIAA reckons it has evidence that all three services do indeed supervise file sharing, but like the evidence for the existence of a server-like elements in the network, it's all rather circumstantial. Enough, perhaps, to make a case but not necessarily to prosecute it.

Just as circumstantial are the claims the companies concerned are making money out of their actions. Making money they may be, but not necessarily directly out of their alleged contributory and vicarious copyright infringement.

Still, the outcome of the case will really depend on the extent to which the defendants are willing to stand up to the RIAA and its massive music industry sponsored legal team. Whatever the weaknesses of the RIAA's case, it has the strength to keep up the fight for a very long time indeed. ®

Related Links

Dotcom Scoop: Internal Memos Outline RIAA's Strategy To Launch Offensive Against Peer-To-Peer Networks and Letter from RIAA President and CEO to industry leaders

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