Mon, 27 Jun 2005

Since Robert brought grokster up, and I’ve been reading the opinions and commentary on the opinions for about two hours now, I guess I’ll blog my simplified reading of what the case means. As pgo readers should know by now, IANAL, but that seems worth saying again since this will be the most pseudo-lawyerly thing I’ve ever written ;)

First, a meta-observation: compare and contrast the wall street journal’s roundtable with the more vibrant discussion at the Picker mobblog and the nuanced readings at SCOTUS blog. I’d think that the WSJ’s discussion would have been fairly vibrant as well (it features a great lineup) but so far has been sort of slow. I am curious as to whether this is a deliberate editorial choice, an artifact of the technology they chose to publish with, or just that the people involved are not as committed to the WSJ as they might be to a more public forum like SCOTUS blog or the Picker mobblog.

On the case itself: Grokster did lose 9-0, but the actual ruling is pretty sane, and the consensus seems to be in line with what Susan Crawford says here: ‘Today’s Grokster opinion is a victory for content AND for technology.’

The court LARTed Grokster for encouraging infringement, but made it fairly clear that producing potentially infringing technology was still OK- basically, upholding the Sony case, which held that VCRs were legal, because they had substantial non-copyright-infringing uses.

How did they manage to affirm both content producers and tech producers? The key quote from the decision itself:

Sony’s rule limits imputing culpable intent as a matter of law from the characteristics or uses of a distributed product. But nothing in Sony requires courts to ignore evidence of intent if there is such evidence…

In english: If you write software that allows copyright infringement, and then actively encourage people to use it for copyright infringement, you’re hosed. But merely shipping software that can be used to violate copyright is probably not enough.

The test for whether or not one is encouraging infringement (apparently borrowed from patent law?) appears to have three main parts: did you encourage people to violate copyright law? (The court seems to suggest that advertising is a key indicator of this, which suggests to me that we’ll never see anything like Apple’s ‘Rip, Mix, and Burn’ again, and suggests to someone else that P2P is going to become like ‘tobacco shops’ selling ‘pipes’.) Secondly, once you’ve encouraged infringement, if given the opportunity to change your software to reduce copyright violation, did you take the opportunity? Third, did you have a strong motive to encourage this violation? (aka, a profit motive.) The court found that Grokster had failed on all three motives, so down they go.

The upcoming battle is laid out in the concurrences, and is discussed in more depth here and here. The main decision said (more or less) ‘we aren’t going to analyze whether or not Grokster passes the Sony tests, because they were clearly encouraging infringements, which makes Sony irrelevant.’ However, three justices took it upon themselves to say in concurrences that ‘Grokster did pass the Sony tests’, and three took it upon themselves to ‘Grokster did not pass the Sony tests.’ The next round for this will be someone (like bittorrent) to come to the court with a technology that has not been marketed as an infringing tool, but which is mostly used for infringing purposes, and for the court to fight it out over whether or not they are liable.

The actual text of the decision (and the two concurrences) is available on bittorrent; the decision actually notes that the amicus briefs were available on Morpheus/Grokster.

[Later]Tim Armstrong, who can’t accuse me of kissing his ass, since I already have a grade from him ;), has an excellent, reasonably brief assessment of the decision, which makes some of the same points I have, but much more clearly. I’m particularly glad to see that he thinks that Apple is not necessarily in the clear with iTuns, as one early assessment (now taken down) had it. Tim is pretty darn smart for a KDE user ;) go read it.