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Okay, SCOTUS, (Supreme Court Of The United States) handed down its MGM v Grokster decsion, and predictably, (and sadly) most of the web commentary is best described as mindless panic, even though there's no real reason for it.
This is not new, but you occasionally hope.
Now, before we go any further, I want you go and read the decision. It's not long, (The primary decision's only about 5 pages) and it's really not a hard read. Go ahead, I'll wait. Make some notes if you like, I'll get some coffee.
See? Wasn't that hard. There, now that we're all on the same page, let's delve into this fascinating bit of legalese.
First, the basic complaint: (Note: I don't change any of the quotes from the decision beyond reformatting them to remove hard breaks and unnecessary hyphens)
Respondent companies distribute free software that allows computer users to share electronic files through peer-to-peer networks, so called because the computers communicate directly with each other, not through central servers. Although such networks can be used to share any type of digital file, recipients of respondents' software have mostly used them to share copyrighted music and video files without authorization. Seeking damages and an injunction, a group of movie studios and other copyright holders (hereinafter MGM) sued respondents for their users' copyright infringements, alleging that respondents knowingly and intentionally distributed their software to enable users to infringe copyrighted works in violation of the Copyright Act.
That's the basic case there. MGM is saying that the defendants created and distributed their software primarily to enable their users to infringe on copyright. It doesn't say that all P2P is bad, although I'm sure MGM and the rest think so. It's saying that Grokster's set their software up for copyright infringement.
Here's the first important bit from the second paragraph:
Respondents are not merely passive recipients of information about infringement. The record is replete with evidence that when they began to distribute their free software, each of them clearly voiced the objective that recipients use the software to download copyrighted works and took active steps to encourage infringement. After the notorious file-sharing service, Napster, was sued by copyright holders for facilitating copyright infringement, both respondents promoted and marketed themselves as Napster alternatives.
This is the important bit, and it's going to pop up again. This is saying that Grokster didn't just hand out the software for people to “use as they will”. This part is saying that there's clear evidence, and lots of it, that Grokster made one of the objectives of their software the downloading of copyrighted works, and actively encouraged this. They even positioned themselves as alternatives to Napster after Napster's first incarnation was bombed back to the Stone Age. This would be analogous to Smith and Wesson advertising the Model 29 as “The best way to blow your neighbor's head off”. Advertising illegal uses as a primary purpose of a product is, what most in the legal profession would probably call “dumb”.
Next, SCOTUS restates what the Ninth Circuit court found in its affirmation of the District Court's summary judgement for Grokster:
While acknowledging that respondents' users had directly infringed MGM's copyrights, the District Court nonetheless granted respondents summary judgment as to liability arising from distribution of their software. The Ninth Circuit affirmed. It read Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417, as holding that the distribution of a commercial product capable of substantial non-infringing uses could not give rise to contributory liability for infringement unless the distributor had actual knowledge of specific instances of infringement and failed to act on that knowledge. Because the appeals court found respondents' software to be capable of substantial noninfringing uses and because respondents had no actual knowledge of infringement owing to the software's decentralized architecture, the court held that they were not liable. It also held that they did not materially contribute to their users' infringement because the users themselves searched for, retrieved, and stored the infringing files, with no involvement by respondents beyond providing the software in the first place. Finally, the court held that respondents could not be held liable under a vicarious infringement theory because they did not monitor or control the software's use, had no agreed-upon right or current ability to supervise its use, and had no independent duty to police infringement.
Here we see the lower court decisions that applied Sony v Universal as saying that because Grokster has substantial uses other than copyright infringement, and that Grokster was, due to the design of the software unable to monitor how its software was used, that it was not liable for how those using its software used it. Furthermore, that because there was no centralized server, and Grokster didn't monitor or control the use of the software, due to both the use agreement and technical feasibility, it had no duty to police the use of the software. This is Grokster's case in a nutshell. “We don't know what people do with our stuff, and we can't monitor how they use it, so how can you hold us responsible for how they use it?” The District Court in the case agreed, and handed down a summary judgement, and the Ninth Circuit Court upheld that.
Now onto the next bit...this relates to the point of “If you market a product's illegal uses, you're responsible for that illegal use”:
Held: One who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, going beyond mere distribution with knowledge of third-party action, is liable for the resulting acts of infringement by third parties using the device, regardless of the device's lawful uses.
Again, if you make a product, and then promote the nefarious use of that product, even fostering such use beyond saying “Here it is, do what you want with it”, then you're liable for the resulting acts. But did Grokster do this? SCOTUS says they did. SCOTUS does point out that the point isn't just “Someone did something bad with your product, you're at fault”. If that was the case, then there'd be a lot of people suing the makers of the Louisville Slugger, along with anything else that can be possibly used as a weapon. SCOTUS says that in cases of copyright infringement, Sony said you can't hold person A directly responsible for person B's actions. However, if person A is actively encouraging person B to infringe on copyright, then person A is said to be liable for contributory infringement:
One infringes contributorily by intentionally inducing or encouraging direct infringement, and infringes vicariously by profiting from direct infringement while declining to exercise the right to stop or limit it. Although “[t]he Copyright Act does not expressly render anyone liable for [another's] infringement,” Sony, 464 U. S., at 434, these secondary liability doctrines emerged from common law principles and are well established in the law, e.g., id., at 486. Pp. 10-13.
Even if you don't directly commit the infringing act, if you are seen to be actively encouraging the infringement, you can still be held liable. Furthermore, while Sony did deal with secondary infringement. That decision said that first, recording a program for the sole purpose of time-shifting it for personal use was allowed, and secondly, Sony didn't encourage users of the Betamax to infringe on copyright, nor did it profit from copyright infringement. Because of that, the only way to bust Sony was on the fact that they were distributing a product that could be used to infringe on copyright. However, Because the VCR was “capable of commercially significant non- infringing uses,” the Court held that Sony was not liable.
Again...in the Sony case, Sony wasn't actively encouraging people to break copyright, and you can do tons of stuff with a VCR that wasn't centered around copyright infringement.
Because of that, SCOTUS disagrees with the Ninth Circuit's application of Sony:
In this case, the Ninth Circuit misread Sony to mean that when a product is capable of substantial lawful use, the producer cannot be held contributorily liable for third parties' infringing use of it, even when an actual purpose to cause infringing use is shown, unless the distributors had specific knowledge of infringement at a time when they contributed to the infringement and failed to act upon that information. Sony did not displace other secondary liability theories.
What SCOTUS is saying is that the Ninth Circuit read Sony to mean that because Grokster has substantial non-infringing uses, unless you could show that Grokster had specific knowledge of all the violations of copyright its software was being used for and failed to act on that knowledge, Grokster was immune from liability for those infringements. SCOTUS says this is an incorrect interpretation of Sony, as that decision did not overrule all secondary liability theories. AKA, Sony was not a “License to Kill”.
The next paragraph goes into more detail, but this is the critical part:
Evidence of active steps taken to encourage direct infringement, such as advertising an infringing use or instructing how to engage in an infringing use, shows an affirmative intent that the product be used to infringe, and overcomes the lawís reluctance to find liability when a defendant merely sells a commercial product suitable for some lawful use. A rule that premises liability on purposeful, culpable expression and conduct does nothing to compromise legitimate commerce or discourage innovation having a lawful promise.
This is a critical part. Just because your product has non-infringing uses, if you actively encourage infringement as a use of your product you're liable. It also says that just because one vendor of a product encouraged infringement as a use of their product does not meant hat all similar products from all vendors are to be viewed in the same way. In other words, P2P isn't inherently bad, but if you advertise it as a way to infringe on copyright, you're gonna get screwed.
Now, onto the next part. This would be the bullet to the brain of the Ninth Circuit's decision.
On the record presented, respondents' unlawful objective is unmistakable. The classic instance of inducement is by advertisement or solicitation that broadcasts a message designed to stimulate others to commit violations. MGM argues persuasively that such a message is shown here.
Bang, you're dead. Grokster was actively encouraging infringing use of their product, and MGM was able to show this.
Three features of the evidence of intent are particularly notable. First, each of the respondents showed itself to be aiming to satisfy a known source of demand for copyright infringement, the market comprising former Napster users. Respondents' efforts to supply services to former Napster users indicate a principal, if not exclusive, intent to bring about infringement.
By marketing yourself as the replacement for a service whose, (in its original incarnation), sole reason for being was copyright infringement, Grokster was specifically targeting its software for use by a large population of known copyright infringers. That's probably not the smartest way to prove that your software isn't primarily designed for copyright infringement.
Second, neither respondent attempted to develop filtering tools or other mechanisms to diminish the infringing activity using their software. While the Ninth Circuit treated that failure as irrelevant because respondents lacked an independent duty to monitor their users' activity, this evidence underscores their intentional facilitation of their users' infringement.
This part's kind of weak. The Ninth Circuit said the lack of filtering tools or other infringement prevention mechanisms was not Grokster's job, and SCOTUS uses this as evidence of Grokster's liability. The truth is, in a decentralized P2P setup, such as Gnutella - based systems, it's effectively impossible to monitor what people are doing with the software, and once you can successfully transcode the file to say, AIFF, then all you really have to go on, (feasibly) is the file name, which is completely unreliable. SCOTUS kind of screwed up here, although the supporting opinions in this case address this technical issue a little. (No, I'm not going into those, as for the purposes of this article, they're redundant, but I hope you read them. They're neat.)
Third, respondents make money by selling advertising space, then by directing ads to the screens of computers employing their software. The more their software is used, the more ads are sent out and the greater the advertising revenue. Since the extent of the software's use determines the gain to the distributors, the commercial sense of their enterprise turns on high-volume use, which the record shows is infringing. This evidence alone would not justify an inference of unlawful intent, but its import is clear in the entire record's context
This part's saying that Grokster makes money by selling advertising in its product. By itself, this is neither good or bad. But, since Grokster actively encouraged using its software to infringe on copyright, and because the more copies of its software are in use, the more money they make, well, this just doesn't help them at all. Taken in context with encouraging infringement, this is just another nail in the coffin of Grokster's case.
In addition to intent to bring about infringement and distribution of a device suitable for infringing use, the inducement theory requires evidence of actual infringement by recipients of the device, the software in this case. There is evidence of such infringement on a gigantic scale. Because substantial evidence supports MGM on all elements, summary judgment for respondents was error. On remand, reconsideration of MGM's summary judgment motion will be in order. Pp. 23-24.
380 F. 3d 1154, vacated and remanded.
No big shock here...the fact that the biggest use, by far of Grokster was to blatantly and massively infringe on copyright, when combined with the other decisions SCOTUS came to, well, the lower courts' summary judgement and support of said summary judgement is gutted. The summary judgment is vacated, and it goes back to the lower court for trial.
So yeah, Grokster lost, but SCOTUS didn't issue a blanket condemnation of P2P. They didn't say anyone using P2P is guilty. They said that Grokster was being shady, and that the lower courts should have actually had the damned trials instead of just issuing summary judgments.
Again...SCOTUS said, “Grokster created and aimed this software at the Napster crowd, and encourage it as a music sharing product”
SCOTUS didn't say “All P2P is only for copyright infringement, and if you use it for any reason, you're a criminal”.
So can we all CALM THE HELL DOWN?
Please?
Thanks.
Posted by John C. Welch at 21:30 | Permalink
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Comments
In the blurb you quote, MGM is not saying that the defendants created and distributed their software primarily to enable their users to infringe on copyright. They're saying that they knowingly and intentionally distributed their software to enable users to infringe copyright works, and that it ended up being its "mostly used" function. It seems to me that as long as software can be used to infringe on copyright, and the distributor knows that and intends that function to be there, and most people use it that way, it falls under MGMs definition.
Tape decks are used primarily for copying commercially bought music tapes. Do you think it would be okay to outlaw them?
BitTorrent is primarily used to copy copyrighted data. It's also very useful for distributing data you own.
Even iTunes' CD copy function is probably mainly used to make CD copies for friends.
In my books, the primary use doesn't matter, as long as there are at least substantial legal uses.
Posted by: LKM | June 28, 2005 10:45 AM
Yes, but that's not what SCOTUS said, and in this case, it's SCOTUS' opinion that counts.
SCOTUS never came NEAR to passing judgement on P2P's (il)legitimate uses or lack thereof, and the inherent legality, or lack thereof.
What they said was; since GROKSTER heavily marketed copyright infringement as a primary use of their software, and because they profited, via advertising in the software, from that use, that they are guilty of secondary and contributory infringement. They said that Sony did not absolve Grokster of liability created by Grokster's pushing of their software for infringement.
It is that marketing and profiting from said marketing that lost Grokster the case, not legitemate v illegitimate uses of said software.
Again, actually READ the decision and the opinions, and this is really quite obviously about how Grokster positioned the product, not the use issue.
Posted by: John C. Welch | June 28, 2005 11:40 AM
I don't get it.
Grokster, a service largely used for illegal sharing, is guilty of contributory infringement, despite having perfectly legitimate non-infringing uses. And the reason it is guilty? Because it tried to attract users of Napster.
But wait ... wasn't Napster also a service largely used for illegal sharing which also had perfectly legitimate non-infringing uses? Napster was found guilty of facilitating but all its users weren't. How does Grokster trying to advertise itself to users who are in exactly the same legal category as its own, suddenly make it guilty of facilitating infringement? So now these decentralised services are legal, and the fact that they are largely used for piracy doesn't matter, but it *does* matter when you are trying to attract the users of another P2P service, in which case the predominantly illegal nature of the activity is allowable as evidence that you intend them to infringe? Does this make any sense to anyone?
Does the phrase "end run" mean anything to you? This decision sucks bad. The Supreme Court is twisting itself into knots here to reverse itself without appearing to reverse itself: if P2P services are legal but eventually cannot advertise their names in any way then they are basically dead. What's next? If several surveys suggest that more than 50% of websurfers use their P2P clients to infringe, does it then become illegal for any P2P programs to offer their software for download over the web? After all, they should know that the majority of those downloads are going to infringers (just like the majority of Napster users), and therefore, they are counting on infringers for most of their revenue, etc., etc.
The Supreme Court is just plain wrong. Advertising to Napster users cannot signify illegal intent because Napster users as a whole were never convicted of anything. The end.
Posted by: Dogger | June 28, 2005 11:26 PM
Napster was busted differently. They were centralized, so they were required to actively prevent infringement. Once their file count dropped to a level of "Totally Useless" then they went out of business because no one used the service, and they weren't making enough money to cover their bills.
What Grokster did was advertise its software as a replacement for Napster, and a great way to 'share music' (read infringe on copyright). That was their major reason for being and how they got customers. "Loved Napster? Use Grokster". The similarity of the name was no coincidence. They pushed their software *heavily* to people infringing on copyright, and the record was full of examples of this. When you encourage or promote use of your product to infringe on copyright, you're liable for that. Just like if Ford advertised the Expedition as being able to easily bounce smaller cars off its bumpers with no damage to itself, and people started doing that. Grokster's advertising model meant they made money off of encouraging people to use it. Even now, on Grokster's main page, sharing music and movies with the rest of the world is the fourth main reson to use it. In fact, I can't find any part of Grokster's site that talks about using Grokster say, in the Enterprise for software distribution, or details on how to distribute stuff legally. The ONLY mention of not busting copyright on the site i can see is one sentence in a banner: "Support the Artist. Buy the Record."
AKA: You're responsible for your actions.
Now let's look at BitTorrent. Their intro does indeed talk about music files...but it talks about it as from the publisher's standpoint. In other words, "you're the person who's allowed to distribute this, we can make it better". BitTorrent is also used by a LOT of companies for legal distribution of software. The news site could be a problem, but BitTorrent itself isn't pushing this as a way to share copyrighted files. They're pushing it as a more efficient way to publish files on the Internet.
BitTorrent also isn't making money off of this ala Grokster. They take donations. In fact, they tell you if people are charging you for it, it's not BitTorrent.
BitTorrent is positioning itself the way Grokster probably should have. Considering that, I think Sony protects them far more than it did Grokster.
Posted by: John C. Welch | June 29, 2005 06:27 AM
Everything I've read in the Law-blogosphere tends to support you John.
BitTorrent looks to be very secure legally.... Those sites that offer links to torrents for copyrighted material are another story.
The real threat to copying for personal use is not the courts, but Congress. If the media companies try to get them to legislate home recording/timeshifting/copying for backup purposes out of existence. ( Case in point: the "Broadcast Flag")
"You'll only be able to take my home-burned Battlestar Galactica DVD's out of my cold, dead hands." ;)
Posted by: Shawn Levasseur | June 29, 2005 02:50 PM
John,
The part you see as weak (page 4, sec D), is the more dangerous part.
Doesn't this decision try to put the same requirement on P2P software as on centralized networks? I think it will be used that way.
SCOTUS is making 'attempt to filter or diminish the infringing activity ' an important liability test. And as you say, it is effectively impossible to do.
SCOTUS is laying out an 'intent' test for liability that file sharing programs will have a hard time passing.
Page 21 of Souter's Opinion of the Court lays out a 3 step test of intent.
First, 'aiming to satisfy a known source of demand for copyright infringement.' Previously Napster was that source. Now, throughout this opinion the attitude is that Grokster/Streamcast is the new source. '90% of the works available on one of the networks was shown to be copyrighted.' (p 4 & 15) This percentage seems to have been obtained statistically by MGM and accepted by the Court.
Second, 'develop filtering tools or other mechanisms to diminish the infringing activity'. The feasibility or lack of it isn't mentioned until the second concurring statement supported by three of the judges and one of those ( O'Connor) is leaving.
Third, 'the commercial sense of their enterprise turns on high-volume use, which the record shows is infringing.' The number of customers using your software for copyright infringement will be taken into account after the first two tests. The footnote (13) states that even if a company stops 'encouraging' (as defined by test 1&2) infringement, the company continues to be liable if it continues to distribute the software.
I think P2P now faces the hurdles that centralized file sharing services faced after the Napster decision. Napster represented the centralized file sharing technology. Grokster is representing the non-centralized file sharing technologies. First, how do other P2P software vendors differentiate themselves from Grokster? Second, how does P2P software begin to diminish the infrinement of copyrights? Third, even if current P2P vendors are successful in answering these two questions today, they might still be forced to stop distributing new versions of their software because they did not do so yesterday.
Posted by: arcsine | July 1, 2005 10:35 AM
Sorry about the stretched layout above. The preview showed up differently.
Posted by: arcsine | July 1, 2005 10:39 AM
I think P2P now faces the hurdles that centralized file sharing services faced after the Napster decision. Napster represented the centralized file sharing technology. Grokster is representing the non-centralized file sharing technologies.
Yes and no. Again, no mention was made in any case of systems like BitTorrent, or systems that don't advertise Sharing Music and Movies as a primary function. SCOTUS didn't reverse Sony. They said it was Grokster's actions that caused the problem. If you look at the whole case, if Grokster hadn't been pushing infringement so hard as a reason to use their software and making money off of it, their actions towards limiting specific file sharing types wouldn't have mattered. By itself, it's not a big deal. With everything else Grokster was doing, it was.
First, how do other P2P software vendors differentiate themselves from Grokster?
"Don't put up big bullet statements that encourage infringement" would be a big start. "Don't be Grokster" would be a second.
Second, how does P2P software begin to diminish the infringement of copyrights?
Prominent notices that remind people to not use the software to violate copyright, and that the software is not to be used TO violate copyright would be a start.
Third, even if current P2P vendors are successful in answering these two questions today, they might still be forced to stop distributing new versions of their software because they did not do so yesterday.
Then they were rather ignorant of how the law works yesterday, and just because you don't know about how the law works doesn't give you an exemption from it.
Posted by: John C. Welch | July 1, 2005 11:43 AM
The first step of a the attack on other file sharing technologies will start with statistics on how much copyrighted material is available through it. 80 - 90 %, and even if you don't advertise sharing music or movies, you advertise sharing files and you're satisfying that 'known source of demand for copyright infringement'. You better hit the second test pretty hard to prove you didn't intend to do it.
The second test requires an attempt to employ tools or mechanisms, not notices. Especially when the movie industry or RIAA will claim to offer 'assistance' in developing that 'tool'. Is it possible without crippling the technology? This assistance probably isn't helpful and you don't find a way to stop infringement.
So the first two toss ups. And with the courts going two to one against new technology vs. copyright cases ( Napster, Grokster, and Sony)... and 2-0 on file sharing cases... well you're in a deep hole.
Number three makes investing in developing new technology like a bad gamble if users might start out by infringing copyright. You might have to stop shipping product while the courts try your case.
Posted by: arcsine | July 1, 2005 04:03 PM
The first step of a the attack on other file sharing technologies will start with statistics on how much copyrighted material is available through it. 80 - 90 %, and even if you don't advertise sharing music or movies, you advertise sharing files and you're satisfying that 'known source of demand for copyright infringement'. You better hit the second test pretty hard to prove you didn't intend to do it.
No, merely advertising "you can share files" is not the same as "Share music and movie files". In fact, you can help yourself by saying "Share files, but only share files where you own the copyright, or the copyright holder allows sharing. Please respect copyright". That right there helps you out. Sony never encouraged illegal movie copying, although I can guarantee you, that a HUGE chunk, prior to movie rentals being a big business, of what was on video tapes was bootlegged movies. As long as you can show that you aren't actively encouraging infringement, and are indeed, taking due diligence to discourage it, then you're safe according to Grokster and Sony
The second test requires an attempt to employ tools or mechanisms, not notices. Especially when the movie industry or RIAA will claim to offer 'assistance' in developing that 'tool'. Is it possible without crippling the technology? This assistance probably isn't helpful and you don't find a way to stop infringement.
No, the second test didn't require that. The second part said that in light of Grokster's encouragement of infringement, and that they made money off of it, their failure to even try to prevent infringement didn't help their case, since it was all based on Sony
So the first two toss ups. And with the courts going two to one against new technology vs. copyright cases ( Napster, Grokster, and Sony)... and 2-0 on file sharing cases... well you're in a deep hole.
Not at all. Neither Naptster or Grokster ever tried to discourage infringement, and indeed, both actively encouraged it. Napster was able, due to its architecture, to remove copyrighted files and ban users trading in those files, which they did, if you recall. Napster didn't die because they were shut down as much as they died because they had no files anymore.
Number three makes investing in developing new technology like a bad gamble if users might start out by infringing copyright. You might have to stop shipping product while the courts try your case.
Note that BitTorrent hasn't been mentioned in these cases, because BitTorrent is positioning itself as a technology for publishing. They don't tell you what to do with BT, just how it works, and what you need to do to use it. Rather similarly to Sony.
Posted by: John C. Welch | July 1, 2005 04:31 PM
You're missing my point, John. It doesn't matter that Napster was a centralised server. The doesn't change the fact it also had legitimate uses, just like Grokster. That means at least some of Napster's users were trading non-protected files. That means that Grokster advertising itself specifically to Napster users is no different than advertising itself to its own users. Napster users were never legally categorised as largely pirates. The reason Napster's operators were held liable is irrelevant. Also, telling users that they will be able to 'share files' does not prove any illegal activity is being solicited, either. What the huh? P2P *is* sharing files, legal and illegal.
Anyone, Supreme Court or otherwise, that concludes that advertising to Napster users automatically signifiies an intent that they infringe is just plain clued out and lumping the users in with the operators. And this DOES create a big loophole in the law that can kill P2P. Because although the 'majority usage' being illegal cannot be used to render the tool illegal, it now according to SCOTUS can be used to render any publicity at all to the group with that perceived majority infringement, as an illegal contributory act. In other words, according to SCOTUS, decentralised P2P sites are allowed to exist, but no longer allowed to say they exist, to any group of people who they can expect to be mostly infringers. In other words, to the world at large.
Posted by: Dogger | July 1, 2005 04:57 PM
You're missing my point, John. It doesn't matter that Napster was a centralised server. The doesn't change the fact it also had legitimate uses, just like Grokster. That means at least some of Napster's users were trading non-protected files.
Actually, it made a huge difference, because it made blocking files far easier for napster. But you're missing SCOTUS' point, which was, if you actively encourage people to violate copyright, regardless of other uses, that encouragement makes you liable for secondary liability. It was that Grokster was actively encouraging and making money from infringement, not that they created software that allows for sharing files. If that was all that was required, then every file sharing protocol in existence would be illegal.
That means that Grokster advertising itself specifically to Napster users is no different than advertising itself to its own users. Napster users were never legally categorised as largely pirates. The reason Napster's operators were held liable is irrelevant. Also, telling users that they will be able to 'share files' does not prove any illegal activity is being solicited, either. What the huh? P2P *is* sharing files, legal and illegal.
Again read the decision. P2P was not, and is not the issue in the decsion. Grokster's marketing IS. As well, making guns is legal, but if a gun manufacturer advertises that their gun makes it easier for you to kill noisy neighbors, they're going to be in a heap of trouble, regardless of the legal uses of their products. Enticing, or encouraging to break the law, or infringe on copyright is wrong. If it wasn't, Charles Manson, (who didn't kill anyone) wouldn't be in jail.
Anyone, Supreme Court or otherwise, that concludes that advertising to Napster users automatically signifiies an intent that they infringe is just plain clued out and lumping the users in with the operators.
Nonsense. Napster's primary raison d'etre was sharing of music. Look at the logo for them, even in their first go round. Look at everything that service was about. It wasn't about an easier way to publish your work, or get patches out to people. It was about ripping your CDs to MP3 and sharing them with the entire Internet. Same thing with Grokster. Show me one ad or marketing campaign from Grokster that said "Breaking copyright is wrong, only use our software for legal, non-infringing uses." From what I can see, it doesn't exist. Yet, there's a ton of examples of Grokster directly encouraging copyright infringement. It is that encouragement that got them busted, and SCOTUS was very clear on this. You may not like that, but it was really quite obvious in the decision.
And this DOES create a big loophole in the law that can kill P2P. Because although the 'majority usage' being illegal cannot be used to render the tool illegal, it now according to SCOTUS can be used to render any publicity at all to the group with that perceived majority infringement, as an illegal contributory act. In other words, according to SCOTUS, decentralised P2P sites are allowed to exist, but no longer allowed to say they exist, to any group of people who they can expect to be mostly infringers. In other words, to the world at large.
Nonsense. That's not what that decision says at all. But i get the feeling that there was no way, in your eyes, that Grokster could have lost without you having this conclusion. If the only acceptable decision to you was for any and all copyright infringement to be supported by US Law, then this isn't worth debating. I've little interest in talking to someone with a closed mind. I read the decision and the opinions multiple times, took notes, asked questions. I can't find anyone who didn't have their mind made up before the case ever went to court who says this makes P2P effectively illegal or even risky. It makes marketing P2P as a way to infringe on copyright risky as hell, but you'd have to be pretty damned ignorant to be surprised by THAT.
Posted by: John C. Welch | July 1, 2005 05:52 PM