Monday, June 27, 2005

SCOTUS kills Grokster

BoingBoing has the most complete link rundown so far. My initial reaction was: "OK, now I know for certain that the Supreme Court is a bunch of hacks whose judgment gets warped by proximity to monied interests." However, the full picture, as Copyfight points out, may be more nuanced than that. I'll reserve judgment till I see how the legal community reacts.

UPDATE(S) (28 June): More links...


  1. I just skimmed through the opinion (but not your links), and I think it's not as bad as it first seemed. The opinion goes to great lengths to point out how Grokster and Streamcast relased their applications for the purpose of inducing infringement. Streamcast marketed itself to users and advertisers as a replacement for Napster, there were internal documents from these companies which showed they were banking on the infringing uses of their services, etc. (One CTO apparently boasted that he welcomed legal trouble because it's good publicity.) Basically, it looks like as long as a company doesn't release its product for the purpose of inducing copyright infringement, it should be safe.

  2. Yes, that's been the general reaction from legal folks. I'm still troubled, though, by the potential scope of other "affirmative steps taken to foster infringement".

    For example, I was initially spooked about the fact that the opinion cites, as evidence that StreamCast wanted to foster infringement, the fact that StreamCast "not only rejected another company's offer of help to monitor infringement . . . but blocked the Internet Protocol addresses of entities it believed were trying to engage in such monitoring of its networks" (p. 9). So if future technology or service providers declined to invade the privacy of their users, would that be construed as "affirmative steps taken to foster infingement"? Then I got to footnote 12 on p. 22, which states: "Of course, in the absence of other evidence of intent, a court would be unable to find contributory infringement liability merely based on a failure to take affirmative steps to prevent infringement, if the device otherwise was capable of substantial noninfringing uses." So it looks like technology providers are not obligated to monitor their users or filter content.

    There's still an open question, though, about the legal status of taking "affirmative steps" that protect your users' privacy (e.g., blocking network surveillance) which also have the effect of obscuring copyright infringement. Such action would be an "affirmative step" that "fosters infringement"; however it might or might not be an "affirmative step taken to foster infringement". I would have preferred language that wouldn't require this sort of fragile parsing.

    Also, the court cites the evidence (p. 20) that "anyone whose Napster or free file-sharing searches turned up a link to Grokster would have understood Grokster to be offering the same file-sharing ability as Napster" --- but this would be true of any content-neutral p2p program. And talking about Napster in your internal memos, or choosing to distribute software bundled with OpenNap (p. 21) seem like actions that any legitimate company working in p2p technology might make, particularly since the courts had not yet ruled on Napster's legality at the time.

    I think that if I were a company looking to develop new technologies for moving bits around the Internet, I'd still be somewhat nervous after this decision. And I would be pretty careful not to talk frankly about potential infringing uses of my technology on the record. You can bet that RIAA et al. will sue, and push for the most expansive definition of evidence of intent to promote infringement.