Inciting Infringement and Innovation: from Napster to Now - the dialectic of law and technology

Abstract

The original Napster had only a short life, but what it set in motion has lasted and been significant. From 1999 to 2001(2) the Napster platform offered the first widely known and widely adopted music file-sharing download service; combining internet distribution and MP3 file-compression with its own central server acting to enable user uploading and downloading of music. Whilst Napster was shut down for ‘contributory infringement’ on the grounds that its central server directly facilitated copyright infringing downloading, its closure on these grounds saw the rise of fully peer-to-peer (P2P) services such as Kazaa. When P2P uploaders were targeted for infringement, Torrent based services replaced them with peers-to-peer (Ps2P) sharing sites (most famously The Pirate Bay). Legal targeting of Torrent sites saw geographical distribution of servers, and the rise of temporal evasion by means of live-streaming services (a form of peers-to-peers software). Where Napster directly pressured record companies to do a deal that enabled the creation of iTunes, its longer-term impact was on laying the foundation for today’s legal streaming services, the most famous of which is Spotify. Today’s legal services provide what Napster offered 25 years ago, free access to recorded content and a consequent reduction in opportunity costs that have seen the rise of live performance ticket prices and sales volumes. The cat and mouse battles between law and technological evasion has made recorded content freely available at the same time as increasing the earnings of live performers.