To Grok Or Not To Grok
It’s been a banner week for the good ol’ Supreme Court, finishing off their term on Monday with a nice hefty wad of decisions. You all know which one I was waiting for , and it came down looking like a doozy: MGM v. Grokster was sent back down in an unanimous 9-0 decision. While it’s true that MGM and their fellow content conglomerates can claim to have “won”, in the sense that they achieved their desired procedural result, it is not nearly so splendid for them as they will claim.
The Court basically expanded the standard set in Sony v. Universal, which says that a technology need only be “capable of substantial non-infringing uses” to avoid being liable for any copyright infringement by its users. Now one can also be liable if they “distribute a device with the object of promoting its use to infringe”, which seems to only say that one must very cautious about how one markets such a device. This standard seems to cover most of the ground of Orrin Hatch’s nasty INDUCE Act, but I think there’s a lot of wiggle room preserved in the distinction between “inducement” and “promotion”. Under the new Grokster standard, it would seem that a given technology could be stupendously awesome at enabling infringement, but as long as the creators don’t mention that awesomeness, they’ll be safe. On the other hand, I think many people could make a good case for the making available of such awesomeness qualifying as inducement to infringe. Some patronizing metaphor about letting kids loose in a candy store would likely be trotted out to great effect in that argument.
For anyone who’s interested in what actual lawyers think about the effects of Monday’s decision, Copyfight has an excellent round-up, at least for their side of the debate. The other side isn’t that happy with the decision either, with Douglas Lichtman, a U of C law professor who filed a brief in support of MGM et al., pointing out that “intent-based standards…are among the easiest to avoid.”
What’s most interesting to me about Justice Souter’s ‘majority’ opinion is that much of the evidence cited against Grokster and Streamcast doesn’t seem to meet the new standard of promoting the use of their programs to infringe. Maybe I’m way off base, because I’ve only heard this issue mentioned once amongst the deluge of analysis in the last 48 hours, on the latest IT Conversations ‘law’ podcast with Ernie Miller (cop it with the new hotness). The bulk of the evidence centers around references to Napster, mainly documenting Grokster’s attempts to market to ex-Napster users after it was shut down, up to and including the use of the “ster” suffix. While Napster was shut down because it would not / could not stop the infringement happening on its network, it seems wholly unwarranted to therefore mark all its users as tainted, such that any attempts to market to them are evidence of infringing behavior. Napster was without question capable of substantial non-infringing uses, even though the particulars of its business left it open to liability for infringement, and it would seem that the Court has disregarded the possibility of marketing to people interested in those uses. The only somewhat direct evidence of promoting the capabilities of their software to infringe comes from an out-of-context quote from Streamcast’s CTO: “The goal is to get in trouble with the law and get sued. It’s the best way to get in the news.” The remark could have been a flip response to a stupid question from the press, or any number of things, but here it stands as “promoting infringement”. It’s odd to think that one quote could bring companies such massive liabilities, and perhaps in the jury trial it won’t be sufficient, but I certainly wouldn’t hire that guy to work for me unless I could get a muzzle-wearing provision into his contract.
All in all, I think the decision isn’t as bad as it could have been, but I’m sorry it even had to be made. I think most of the pundits are right when they say that the only real winners here are the lawyers.
evan :: Jun.28.2005 :: Notices :: No Comments »