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Supreme Court Rules against Grokster
furry_wookie writes "A few minutes ago, the U.S. Supreme Court has ruled unaniumously against Grokster today. This ruling means that developers of software violate federal copyright law when they provide computer users with the means to share music and movie files downloaded from the Internet. More info about the case here." That's not an entirely accurate statement -- what The Supremes said is that "One who distributes a device with the object of promoting its use to infringe copyright ... is liable for the resulting acts of infringement by third parties using the device, regardless of the device's lawful uses." The promotion is the key part of that statement.
Update: 06/27 18:00 GMT by T : Reader SilentBob4 points out this interview with EFF attorney Wendy Seltzer on the decision.
So if you write a p2p app and declare it to be content-neutral (i.e "I don't care what you use it for") is that "promoting infringing uses"? What if you put a lot of ads in it saying "Sharing copyrighted material is very, Very Naughty. Please don't do it." Would that get you off the hook?
Brian Smith "Jokers and aces, bruisy and blackfern" - Steve Kilbey, Day of the Dead.
Now it is clear, it is legal to distribute a device to infringe copyright.
It is not legal to promote the illegal uses of that device.
This seems pretty reasonable to me. You can make the device, you just aren't allowed to actively benefit from its illegal use.
They key is promotion? So i can create the next great filesharing app so long as on my website I don't promote using it to infringe on copyright? I still think that this ruling can be used against applications like Newsleecher. They do not promote copyright infringement but the vast majority of users are using it for that purpose. Its still a great application for retrieving freeware usenet binaries (trust me, they exist).
This is definitely the important part of this ruling. It's very obvious that Kazaa, Napster, Morpheus, Grokster, Limewire et al Truly exist on a userbase of copyright infringement. Not only does it exist and they take no official notice of it, but you can easily argue that the ONLY reason for owning a copy of any of those clients is for the explicit use of copyright infringement. You can say "P2P is noble" but you can't say that Kazaa is. Bittorrent is exactly the opposite, that is, many people do abuse the tool but it's primary use is legitimate. Anyone have usage statistics for legit/illegit uses? I move upwards of 50gb in legal material every month, and I'm sure I'm not the only one.
Each processor would proceed sequentially as if it had been better for them not to rise against Saul.
While I was surprised by the 9-0 ruling, the end result isn't that shocking. Essentially, the Court ruled that, if you sell or market a product/service, and the key point of your marketing plan is that the product enables users to do something illegal, you can be held liable for the results of their actions.
Before we get into a discussion of "but is Ford liable for drunk driving," this isn't the same thing. If Ford marketed their new model, the "Boozemaster LE," which had IR sensors built into the headlights that made it easier to home in on pedestrians when you're drunk, then yes, they would be liable.
Sony won the Betamax case because they were pitching their product based on its non-infringing uses - Grokster lost because the basis of their value proposition was the infringing uses.
"The supreme court is becoming more and more pointless every day IMHO"
That might be true if you didn't take a moment to realize that our legislatures are more interested in corporate giveaways and popularity contests, and the American public is so apathetic, it's basically abdicated its responsibility as citizens to instead become consumers and ratings numbers.
In that light, I think the courts are forced to be the adults around here, whether they want to be or not.
From a legal perspective, that makes sense. Bittorrent has always been about just "large file distribution" and was initially pushed as an alternative for downloading movie trailers, large Linux distributions, etc. It's gotten a fair amount of traction among a great deal of media sites as a fantastic way for distributing their work. It just so happens that it can be used for illegal purposes, like other technology.
That's a far cry from some p2p software's claims of "Find any song, any movie, any show, in seconds!" Bittorrent was introduced as a means for downloading big files. Plenty of other p2p software was introduced almost explicitly for downloading copyrighted material, and advertised as such.
So while the ruling initially sounds like a blow to p2p software, the wording shows that it's simply a blow to software made and distributed expressly for infringing copyrights. I can understand how "if you're encouraging copyright infringement with your software you're just as guilty" can lead to unanimous agreement.
"We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by the clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties"
So unless you advertise that your service is useful for infringement OR you take steps to intentionally allow for infringement then this ruling doesn't affect you. That won't stop chicken little from posting that an FTP ban is around the corner though.
Even more thought provoking is this...
... is liable for the resulting acts of infringement by third parties using the device, regardless of the device's lawful uses."
... is liable for the resulting acts of BODILY HARM by third parties using the device, regardless of the device's lawful uses."
"One who distributes a device with the object of promoting its use to infringe copyright
I hate to extend things, however, couldn't a similar extention be applied to almost anything? Let's try firearms...
How does this sound.....
"One who distributes a device with the object of promoting its use to DO BODILY HARM
You could replace almost ANYTHING. I think they have set a VERY POOR precedent. All IMHO of course...
MM
If I sell lock picking devices and say: "makes it so easy to break into your neighbor's house and take his stuff," I'd expect to get sued when it happens.
If I sell lock picking devices and say: "makes it so easy to get back into your house or car when you've locked the keys inside," I'd expect protection from lawsuits.
At the same time, this makes the legal environment that technology producers have to deal with more unfriendly. Companies are going to start including DMA when they otherwise might not have, just to make sure they duck lawsuits. Copyright is good. But technology is more important than copyright. I don't like the idea of effectively suppressing technology to protect content producers.
Well, hopefully the chilling effect won't be that huge. Hopefully only egregious cases like Grokster will be seen in the courts. I'm holding my breath.
I wouldn't count on the Supreme Court even understanding what you just said, let alone give you a favorable ruling...
... in fact, quite possibly, they understand it a hell of a lot better than the average geek does. This doesn't make their decisions necessarily right, of course, but those decisions are unlikely to be founded in utter ignorance.
Oh come on. The Supremes may be tech-illiterate, but the GPL is a legal document, not a technical one. I'm sure people with the level of legal experience on the Supreme Court are capable of understanding both the GPL itself and its implications
The correlation between ignorance of statistics and using "correlation is not causation" as an argument is close to 1.
The reason being is because the justices of the Supreme Court (well some of them) don't judge on the basis of the constitutional text alone. The Constitution says nothing about Fair Use, filesharing, computers, the internet, or p2p. What they decide on is part constitution and part existing culture and similar law in otehr countries. When the Supreme Court struck down the death penalty for minors, one of the points made was that no other developed country allowed the death penalty for minors.
Direct contradiction of previous rulings are the norm. In it's history, the Supreme Court first upheld segregation (Seperate but Equal) and then struck it down (Brown vs. Board of Ed). The lawyers for the Brown side of the case didn't argue on the basis of the constitution or whether or not the Equal side of Seperate but Equal was being fulfilled (which it wasn't), but on the basis of the inethicality of segregation.
And finally, this case doesn't direct contradict a previous ruling (unless your referening someting other than the Betamax decision). In Betamax, the Court ruled that a device (or it's creators) isn't liable for copyright infringement if it has substantial noningringing use under the doctrine of Fair Use. It set a litmus test under which, if something is found to be primarily working within Fair Use, it is not liable for a non-Fair Use infringement, but if it is found to be primarily used to infringe copyright, it is liable. Using this litmus test, the Supreme Court found Grokster to fail.
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2. The insane Eminent Domain ruling, making it a cinch for anyone to take anyone else's property, legally. Property rights no longer exist.
This state of affairs has been the case for many years. The ruling was a reaffirmation of the status quo. If you live in a state, city or county that can take land without review, be worried. I live in TN. All eminent domain attempts are subject to a jury trial. It is different from place to place.
Comparing it to Windows will be a moot point, since El Dorado is going to have a 40% larger code base than XP.
Except that doing bodily harm is in some circumstances, legal. AFAIK, firearm manufacturers aren't marketing their guns to gangs. They create and market their guns to law enforcement, self-defense, and hunting, all of which are legal. Grokster on the other hand created and promoted their product to do something that is not legal. If Smith and Wesson started coming promoting their guns as the best way to kill someone and not get caught because of some new technology, I think they might just get taken down for it.
Exactly correct. It's a pretty limited decision, specific to Grokster's business model. The next P2P company that comes along just has to do a better job of advertising their product for the purpose of exchanging legally exchangeable files.
In other words, the SCt weaseled out of a definitive ruling on the P2P question. They're good at weaseling out of such decisions these days - quite a shame. Maybe the next P2P company targeted by the AAs will push the Court to a clear ruling... maybe not then, either.
In short, this is a limited legal victory for the P2P community.
More importantly, it's a good practical step for the P2P community. If these decisions remain long, drawn-out, and in dire need of follow-up cases and mounting legal fees, then perhaps the AAs will decide that this battle isn't worth fighting. They've already made some recent noise about starting their own P2P services.
- David Stein
Computer over. Virus = very yes.
Admittedly I just heard about this, but I'm not so sure this is really that bad.
I mean, it seems like this precedent would only apply if I sold guns with the advertising slogan "Kill your neighbor and loot their corpse with Burke brand firearms!" Versus advertising their use in hunting or self-defense, both legal uses of guns.
Or let's say I sold crowbars (with carbon-fiber grip to match my high-quality pistol grips; buy a matching set, makes a great gift!) with all of the bullet points related to how useful they are for breaking into cars and homes when the owner isn't around. If I claim my crowbars are vastly superior for B&E than any competing crowbar, would it be outrageous to claim that I expect that crowbar to be used for nefarious purposes despite all the legal uses for crowbars?
If that's the difference, then I can't say I find this decision alarming. Grokster advertised their ability to find illegal song downloads. So unlike any other file transfer method which is simply used for illegal transfers, Grokster actually made this one of the main selling points of their product. This defeats the usually quite valid argument that P2P is just a tool with legal and illegal uses -- Grokster decided that their marketing should focus on the illegal.
This kinda strikes me as similar to the situation in, say, head shops. Your glass "tobacco pipe" has plenty of legal uses, and thus they can sell it to you just fine. Mentioning the illegal uses is going to land either you, the customer, or especially you, the store in a heap of trouble.
All of which is to say that I'm not even sure that this case is establishing a precedent that didn't already exist.
The enemies of Democracy are
Exactly correct. It's a pretty limited decision, specific to Grokster's business model. The next P2P company that comes along just has to do a better job of advertising their product for the purpose of exchanging legally exchangeable files.
no, no, no!
Here's the problem. The Supremes didn't say "Grokster's advertising practice promotes the act of copyright infringement and any and all promotional materials and advertisements that do so are illegal." they said "making a piece of software that's marketed as a vehicle for copyright infringement is illegal."
The reason that's important is that a legal interpretation of some borderline ad-campaign could make X-brand software illegal (instead of making the company change the advertisement, pay a fine, etc).
The software and the advertisement are not the problem, the infringement is (although, seperately, the promotion itself is possibly illegal).
This ruling's reasoning is not far from "My kid played GTA and shot a cop, it's partly the game publisher's fault." No, it's not. It's the (hypothetical) kid's fault...you know, the one who actually did something wrong? I don't know what they're smoking in the court these days, but it must be good.
"Murphy was an optimist" - O'Toole's commentary on Murphy's Law
I don't think they weaseled out of anything this time. By framing it as "the P2P question" and complaining about "weaseling", you are suggesting that you want either a unanimous "yes, any P2P is fine, even if it blatently encourages infringing uses" or a unanimous "no, P2P is horrible, even for solely legal uses". Neither is okay: yes to all P2P is bad because, even if "music should be free, etc...", copyright law still exists; no to all P2P is bad because it gets rid of legitimate uses like torrenting Knoppix ISO's. They came up with the best possible outcome, which is a compromise, stating that pitching software as primarily a way to infringe copyright is not okay. This is good. You shouldn't be encouraging the Supreme Court to make extreme decisions just to avoid "weaseling"!
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How about this? In the United States, its legal to grow and smoke a plant that is known to cause cancer and kill you, but its illegal to grow and smoke a plant that can be used to relieve the pain from the cancer caused by the legal plant mentioned above.
Its all about big business. Weapons and defense is big business. File sharing apps are not. Tobacco and drug companies are big business.
Someone please mod this up.
I agree wholeheartedly that the point of whether the product is promoted one way or another is irrelevant. What is pertinent is that Grokster itself did not download any copyrighted material or found to be guilty of anything except the tangential copyright infringement of their users.
It shouldn't matter if they told their users to commit copyright infringement using their product. It shouldn't matter that they *encouraged* users to commit copyright infringement using their product. They, in fact, did not commit the crime, the user downloading the copyrighted material did.
Unless, of course, encouraging others to commit a crime is itself a crime. Something, of course, they were not on trial for to begin with, but which also stinks of a worse problem regarding First Amendment rights.
C
The Sun is proof that we can't even do fire properly.
-- bullets whose sole purpose of design is to go through bullet proof vests; obviously a device designed to kill or maim human beings
Currently yes, it is. And the reason is simple... it was recognized by our founders that it is essential to a democracy for the citizenry to be able to, if need be, defend themselves fromt he government.
That means that it is reasonable, as a law abiding citizen, to desire the means to have lethal force available in your defense.
--> Fight tyranny and repression.... read
the P2P developers problem was that while they did come up with legal uses the perception of them was that they did that only for their court case
so , let's get this straight:
Yes, lets.
in the united states , it's legal to sell armour-piercing ammuniction -- bullets whose sole purpose of design is to go through bullet proof vests; obviously a device designed to kill or maim human beings. the manufacturers to do not even make the pretense of proposing other uses for said ammunition. this activity is all fine and legal.
Yes. That statement is correct. I can purchase ammunition that is made with the sole purpose of defeating body armor. Since body armor is also legal, it is possible, but not probable, that someone may wear body armor while committing a crime that would warrant the use of deadly force to stop. The ability of citizens to purchase this ammunition allows them to protect themselves. If you use the above mentioned ammunition to kill a law enforcement officer while committing a crime, you will most likely get a death sentence.
by comparision, a device that may or may not be designed for, but is certainly capable of, infringing copyright is deemed illegal. the manufacturers at least attempt the pretense of proposing legal uses for the technology and make a somewhat-better-than-marginal case for its legit use. this is not fine or legal.
This statement is not correct. What the supreme court has said is that if you create something that CAN be used in the commission of a crime, and then ENCOURAGE its users to commit crimes with it, you may be held liable.
question for the supreme court: do you really believe the the copyright of the bay city rollers first album is more deserving of legal protection than a human life?
I can't answer for them, but for me, both victims of violent crimes and copyrights both need to be protected.
That said, copyright law is in serious need of revision. Apparently the government has lost sight of the "promote the Progress of Science and useful Arts" part.
precisely... because it's not their job to make the law... just to be the final arbiter on how the law as it stands actually should be interpreted.
Donald 'Duck' Dunn: We had a band powerful enough to turn goat piss into gasoline.
Justice Ginsburg's concurring opinion (The Chief Justice and Justice Kennedy joining in) argues for revisiting Sony at some later date in the direction that the content cartel want to, with 90% infringement being enough to ban a technology.
Justice Breyer's concurring opinion (Justices Stevens and O'Connor joining) rebuts Ginsburg and points out that the trial record from Sony also identified about 90% infringing uses! Rather changes the picture. More interesting, they also point to evolving positive uses of P2P for non-infringing distribution [1] and expect that, as with VCRs, noninfringing uses will grow with time. In other words, much what the EFF and others have argued.
This one ain't over yet. It looks like the Court is pretty evenly split and just ducked the question today.
[1] Notably, they cite Linux.
Lacking <sarcasm> tags,
That's not quite right. The Court has always resolved cases by ruling on the most limited basis available. For instance, if a case can be dismissed either by an in-depth review of the First Amendment or by relying on a procedural legal error, it always relies on the latter.
This is different than issuing the most limited ruling possible. Every single case can be resolved on case-specific factors: "We find this way only because the activity occurred on a Wednesday, and the plaintiff was wearing red socks, and the defendant's first name is Homer. We decline to extend this ruling to any other combination of factors."
The Court shouldn't be doing this. This is the highest court in the land - it shouldn't waste time resolving questions that apply solely to the case at bar. When it rules, it creates precedent on which lower courts rely to dispose of similar cases. That is its job.
And this is why this decision is pointless. The ruling: "If you're going to create a P2P company, don't promote it for the purpose of violating copyright." Company response: "OK, we won't. Now are we legally in the clear?" This question is still open.
- David Stein
Computer over. Virus = very yes.
The Iraqi insurgents seem to have no problem giving us fits with basic assault rifles and homemade bombs. Obviously the same could work in the USA if the citizens were behind it.
This is my sig.
The judgment is available here (linked to from here). That includes the summary, Souter's opinion, and the two concurring opinions. Other people have already talked about the important parts of Souter's opinion, but I found the concurrences just as interesting (though less important).
The first concurrence, Ginsburg's (page 30 of the above file), sounded pretty dangerous to me. It lists over a page of evidence for non-infringing uses (pages 34-35) and then immediately dismisses at all without considering it. It doesn't even talk of the dangers to new technologies. But the last paragraph is the scariest. "If, on remand, the case is not resolved on summary judgment in favor of MGM... the Court... should reconsider, on a fuller record, its interpretation of Sony's product distribution holding. Now, IANAL at all, but that sounds pretty bad.
The second concurrence (page 38), also by three judges, is a lot nicer to me. Pages 42 and 44 have long lists of non-infringing uses including books, Linux software, and things licensed under Creative Commons. It even says that Grokster is protected by the Sony standard. It goes on to talk about how the Sony standard has been a fairly good one. It talks of how both non-infringing uses of Grokster and use of legal programs (like iTunes) will grow. It's still a concurring opinion, but the tone is much more mindful of protecting technology and looking forward to the future, a view that was missing from the first concurrence.
I've often thought the opposite of this...and hence a main reason pot hasn't been legalized. How would a big company make money and the govt get taxes on a plant, that anyone could grow themselves in their backyard if legalized?
Light travels faster than sound. This is why some people appear bright until you hear them speak.........
Could I interest you in a bottle of water?
How about a cup of coffee?
Killing human beings in a very few circumstances, is permitted by law -- most notably self-defense. There have been many cases of criminals wearing body armor.
In the courts opinion, it is reasonable to think that a citizen may have a legitimate usage for armor-piercing bullets. If a ammo manufacturer advertized their bullets as being "cop-killers" then they would be more analogous to the people who distribute a p2p system with the advertizing of "find any song, movie, show etc."
You're arguing about gun-control in general, which is actually counter to what you're (I think) advocating. The same defense that keeps guns legal -- there is in certain circumstances a legal reason to have a gun -- is the same arguement that will protect p2p as a whole. There IS a set of circumstances in which p2p can be legally justified, and thus the whole technology cannot and will not be banned. Just as legally, there ARE restrictions on how guns can be used, there are going to be legal restrictions on how p2p can be used.
Do I agree with this p2p ruling? Not really, I don't personally support the current copyright law, but as a member of the Supreme Court, I'll answer your question. We don't value anything more than individual liberty, because life without liberty is an abhorrent concept. We ruled against people promoting breaking the law, and not against p2p. How else COULD we have ruled?
Nothing great was ever achieved without enthusiasm
The ruling had issue with the intent of the developers, not the technology. The development showed an intent to distribute protected media. If Henry Ford first introduced the "car" as a device for running over pedestrians, it wouldn't have been legal either.
This may come to a shock to you, but I don't think that people who make a career of law enforcement are in league with your sister's ex to allow her to be murdered so they can grab a Krispy Kreme. The REAL issue here is that the US is such a litigious society that no matter how well a civil servant performs their duties, someone will look for a payday by filing a law suit. What do they have to loose?
Hey, this might not be great for consumers, but let's be realistic. Why should a company invest in implementing and maintaining any infrastructure when it gives them no competetive advantage? Years ago, banks suied and won a case that allowed them to chanrge a $1.00 - $3.00 service fee for money withdrawn from their ATMs from rival bank card holders. Before that, a Bank may have 1,000 ATMs and had to share access to them, but not the cost of operating them, with their rivals. How is this fair?
So another way to say this is, "Reporters now face possible jail time for protecting sources who are suspected of committing a crime". Hey, this makes sense to me. Since a reporter is neither judge nor jury, why should they be able to decide who is guilty or inocent of wrong doing? That is for our legal system to decide. And since the media wields so much power, (witness Wendy's loosing millions on false claims that someone found a finger in their chili), it makes sense to provide a check and balance to that power.
Um, no. It goes more like this: A municipality (like a city) may force people to sell private property at market rates for both public use (like a highway which has been a law for years) and now also private development (like to build a shopping center or stadium) if it will benefit the public at large by means such as improving the tax base. What this does is allows a city to take a low income urban area filled with rent houses and redevelop it into a new football stadium that will add millions in taxes over the years, without having to pay $250,000 an acer to a slum lord who'se been renting 1 br. appartments for $300 a week.
In closing, you sir, are spinning lies. Way to go!
I only came here to do two things; kick some ass, and drink some beer...looks like we're almost out of beer.