[Commons-Law] On the Grokster decision

[prabhu ram]

>TCS

The File Sharer's Guide to the Universe 
 
By Jay Currie  
 
 The Supreme Court decision in Grokster is being spun as a victory for
copyright holders and, more specifically, the music and movie
business. More sophisticated analysis recognizes this is not an
outright win. As ever, the devil is in the details and the detail
which I suspect is causing a bit of consternation in the blonde
boardrooms of the entertainment biz is footnote 12:

"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 non-infringing uses. Such
a holding would tread too close to the Sony safe harbor."

Combined with Justice Souter's opinion for the Court which imports a
requirement of "intent" into any litigation alleging contributory
infringement, while this was not a good day for Grokster, it was
hardly the end of file sharing as we know it.

Souter wrote that for Internet file sharing technology to be out of
bounds, there must be evidence that its inventors had to be aware of
its potentially infringing uses and must make "statements or actions
directed at promoting infringement." So that puts paid to Apple's
"Rip, Mix, Burn" ads. However, it is hardly likely to stop innovation.
Instead, the Grokster decision sets out a roadmap for technologists
who want to build P2P software.

First, do not induce copyright infringement. No ads, no nods, no
winks. Second, make sure there is a non-infringing use for the
software. With P2P this can be anything from users sharing their
photos online to promoting their garage band or letting the world
download their latest software for beta testing. Third make an
attempt, however lame, to install a user-option filter which would
spot copyright marked songs/movies and make them non-downloadable. You
may even ship the P2P software with the "anti-infringing" filter
turned on and leave it up to the user to make their own decision.
Fourth, make sure that you put a big, honkin' disclaimer on your site
-- "The software on this site is to be used for sharing files which
you own. It is illegal to share copyright material. If you don't know,
don't share."

Follow that roadmap and a P2P technologist will have a good, if not
bulletproof, defense to an allegation of contributory infringement.

A couple of months ago Brad Burnham, a venture capitalist with Union
Square Ventures in Manhattan, said in Wired Magazine: "All hell's
about to break loose." The reason? "A new technology, BitTorrent is
emerging and it does not require the wires or airwaves that the cable
and network giants have spent billions constructing and buying. And it
pounds the final nail into the coffin of must-see, appointment
television. In short, BitTorrent transforms the Internet into the
world's largest TiVo."

Grokster does not do a thing about BitTorrent and its related
technologies. Bram Cohen, the inventor of Bit Torrent seems to have
read the minds of the Supreme Court a few years ago. If you promote
your sharing software as a means to share copyrighted material then
you are infringing; however, if you build something like BitTorrent
and are extremely careful not to say anything as to what it might be
used for, the technology in itself, is not illegal.

Bram Cohen, the inventor of Bit Torrent, has been very careful indeed
to avoid any mention of copyright infringement as a use for torrents.
He has no advertising on the site where you can download Bit Torrent.
In light of the Supreme Court's decision, Cohen today is looking
really, really, smart.

Establishing intent is one of the most difficult things to do in law,
particularly when you are dealing with people as savvy as Bram Cohen.
Looking at the technology of Bit Torrent, it is pretty clear that it
is, in the nomenclature of arms control, "dual use."

However, where the legal standard is a "clear inducement" to infringe,
there is a significant onus on a copyright holder and one which will
be tough to meet.

Grokster was likely the last hurrah for the copyright holder's
enforcement based strategy. While it certainly gives them the tools to
shut down P2P services based in America that induce copyright
infringement, it also gives the technologists the chart to a safe
harbor -- a chart which will allow them to kick the decision to
infringe or not to infringe right back to the user.

The unwillingness of the Supreme Court to adopt the position that the
mere possibility of infringing use makes the technology prima facie
liable for contributory infringement means that the idea of collective
licensing will gain some traction.

Technologies like Bit Torrent combined with broadband means it is a
snap to find and download, largely anonymously, whole albums,
television episodes and movies. If the copyright holders cannot shut
down the inventors of these technologies, and Grokster seems to mean
they can't, another model for paying the creators is going to have to
be found. Collective licensing or a media levy would seem to be it.

Jay Currie is a Vancouver Island writer