Why Is Napster Shut Down but Grokster’s Still Running?

Last July, a federal appeals court forced Napster to shutter its MP3-swapping service. Copyright-shirking music geeks turned to rival networks like Morpheus, KaZaA, and Grokster, through which tens of millions of bootlegged files now flow daily. Why are these upstarts still running?

They’re darn stubborn. The entertainment industry figured that the Napster court order would put the kibosh on future file-sharing schemes. But the new companies relish playing David to the recording industry’s Goliath; Steven Griffin, for example, CEO of Morpheus distributor StreamCast Networks, likes to compare himself to 13th-century Scottish insurgent William Wallace. So when the cease-and-desist letters began arriving, Napster’s heirs didn’t flinch. And when 29 record labels and movie studios filed a copyright-infringement suit last October, the file sharers all vowed “no surrender.”

Their cockiness isn’t as imprudent as it seems, however. Napster’s fatal legal error was its network’s design—it indexed all MP3s stored on users’ computers on company-controlled central servers. Napster thus couldn’t plead ignorance of its users’ piratical pastimes. Napster’s successors, on the other hand, employ decentralized networks. KaZaA and Grokster are based on a technology called FastTrack, which allows individual users’ PCs to connect directly to one another. The networks randomly select a few PCs to act (unbeknownst to their owners) as “superpeers,” which index files and handle search requests.

The absence of central servers means KaZaA and Grokster can’t track their networks’ users. So if someone decides to, say, download an unauthorized copy of the latest Ludacris single, the companies can disavow knowledge of—and thus responsibility for—the file transfer. As a Grokster attorney recently put it, “The defendants no more control the actions of its users than any of the thousands of other companies that provide the hardware and software used in connection with the Internet.”

Powered by FastTrack until a few days ago, Morpheus now relies on the old Gnutella peer-to-peer network. (StreamCast abandoned FastTrack because of a licensing spat with KaZaA’s parent company.) It’s much slower than KaZaA and Grokster since search queries must ping through every logged-on computer rather than accessing a superpeer. But the ultra-anarchic design also means that Morpheus enjoys even more plausible deniability than its speedier kin.

The file-sharing outfits claim their amorphous networks cannot be shut down without shutting down the entire Internet, though the entertainment industry dismisses that contention as rubbish. And two of the defendants are based overseas—KaZaA in Amsterdam, Grokster on the Caribbean island of Nevis. Neither locale—especially the latter—will be keen to bust a local business for the sake of some Hollywood moguls. Good luck getting an injunction enforced.

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