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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.
is that it wasn't even close. It was an unanimous ruling.
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How can they directly contradict a previous ruling? How is it possible that the constitution says one thing one day and another another day... Reform time? The supreme court is becoming more and more pointless every day IMHO....
Except Grokster is open source. So let's say I'm using Grokster for some legal purpose, and I repackage and sell it as is legal under the GPL, and promote it myself promoting its legal purposes only. So, because OTHER PEOPLE promoted Grokster for illegal purposes, does that mean I can't distribute Grokster either? Or do they get nailed for promoting Grokster for illegal purposes and I get to keep doing my thing?
Irritable, left-wing and possibly humorous bumper stickers and t-shirts
I think the Supreme Court has made some really questionable decisions as of late. Precedent and politics rather than Constitutionality and liberty are the driving factors behind everything.
Thomas Jefferson opined in the Federalist Papers that we would not be in danger of losing our guaranteed liberties until all three branches of the government became united in their views and doctrines. It seems that we are moving in that direction, or perhaps we are already there.
And let it get processed by the courts. That seems to be the theme this year with the Justices, not giving any solid guidelines to help out, but allowing the courts to be used time and again for sorting this sort of thing out. Far be it from me to tell these people how to do their jobs, but it does seem reasonable to expect them to let the rest of us know how to make a legal judgement in this sort of thing.
> It's about intentions.
So what were the intentions behind home video recorders? Presumably the intention was to tape your own films or something...
But lose the war.
Even though they won the Grokster decision, the language of the decision, from what I've read..they've actually given up the whole game. Because this makes innovation actually EASIER. It might even defang the DMCA..actually I suspect it will.
See, all you have to do is market it's non-infringing use. P2P software makers, just link to people hosting public domain and publicly released stuff. That DVD copy software, for example, that was shut down because of this probably would have a pretty damn good defense under this ruling.
So what is this going to do? It's going to increase the exposure or public domain/CC/whatever material, and do nothing to shut down most of the P2P networks out there.
It's so ironic it's beyond funny.
There's an awful lot of legitimate software sharing, primarily large open-source or otherwise freely redistributable packages, over peer-to-peer networks... mainly bittorrent. Just follow slashdot for a while, just about any time a new release of something gets slashdotted, you get three posts right after each other: someone sets up a mirror, the mirror gets slashdotted so someone sets up a torrent, and then someone points out you can still get the original site through nyud.net.
On the other hand, I was absolutely amazed how long the original Napster was able to operate. The intent of the product was clearly to promote copyright violation, and to profit from them. The whole "pirate" theme from their logo on seemed like they were just begging to be prosecuted.
On the gripping hand, Grokster doesn't seem to be taking anything like the same kind of approach, so I'd like to see the basis of the decision that Grokster was distributing "a device with the object of promoting its use to infringe copyright". I guess I'll have to wait until it's posted and/or transcribed.
The intention was to allow people to record telvision programmes and watch them later. The supreme court decided this was legal, and it is genuinely how most people use them.
The whole premise of why use freenet seems to be that the content you are communicating is illegal somewhere. The user makes the choice which country's laws he wants to circumvent.
It is illegal to publish, in the USA, for example, the purely-political works of an Iranian Nobel Peace Prize winner, which ban is just as unjustified as Chinese or Iranian censorships, and things keep getting worse here.
Censorship is government-sanctioned far more often than government-opposed. Freenent and so on exist to avoid censorship even if the uses happen to be legal in some countries. Censorship is also increasingly a function of DMCA, etc. Thus it is criminal to write software which promotes free speech?
If a bank inadvertedly (and after taking reasonable steps to ensure it doesn't happen) launders money, they make money on it. They just can't go encouraging it's use or not taking reasonable steps to ensure that it occurs.
Unless there's some "interest paid to the state" rule in money laundering law that I am unaware of.
As for supporting performing artists, I believe that strong enforcement of copyright laws will actually damage artistic careers more than support them, much as a strict union shop will tend to limit job growth and career advancement rather than enhance them. By making it more difficult and expensive for a library to provide music recordings and videos, and for hotels, restaurants and clubs to play music over their ceiling speakers, we limit the exposure of performing artists.
Free and unsanctioned downloads of music and movies are an abuse of the superb distribution system that the internet has become, but the alternative of locking these items up so tightly with onerous legal restrictions will hamper distribution.
For example, the "buzz" that is generated by a hit comes not from people flocking to record stores and purchasing the single, but from hearing it on the radio, hearing it on a friend's stereo, and trading recordings. Cutting off this informal distribution system will damage the music industry something awful.
it's = "it is"; its = possessive. E.g., it's flapping its wings.
Grokster is a company who's business plan depends on their software being used for illegal file trading. They might be careful about saying that now, but it seems pretty obvious to me. I won't shed a tear if they go out of business.
This won't be the end of the internet. This won't even be the end of P2P. It might be the end of companies like Grokster. And I don't think that'll significantly distrupt the lives of most people. Free software will fill in the voids, and life will go on.
One time I threw a brick at a duck.
Doesn't this make Web Browsers illegal now? - since I can download media from through them, and the P2P programs are no different than a glorified web browser with a different interface.
Stupid idiots...I can't believe that the Supreme Court could be bought...there is not other explanation for this stupidity.
These Supremes answered the wrong question. They were asked to validate or repudiate the lower court's opinion. Which was that when Grokster does not promote criminal use, the software has has "substantial legal use", Grokster does not know when an illegal transaction occurs, and Grokster does not even itself have the power to bar a specific person from making a transaction, Grokster cannot be liable for a criminal transaction by a user. And, by extension, neither can any other provider of software meeting those conditions. The lower Grokster decision did not explicitly state that Grokster must not promote criminal use, though that seems implicit in "has substantial legal use", when such a condition is nowhere mentioned explicitly. You know, like how "possession of encryption implies criminal intent".
I suppose that Grokster also must not "force users to commit crimes, including at gunpoint or through hostages or nuclear blackmail", but the Supremes did leave us all thrashing in ignorance of that detail. Likewise, we still can't be sure that Grokster can avoid liability when they do not promote crime, because we can only infer that state - which costs a lot of money for lawyers to do, with Hollywood now making an industry out of propagandizing that implication.
Perhaps the lower court, to which the Supremes' decision returns the case for a new decision with their "advice", will find that Grokster is not liable, because it did not promote criminal use. Then MGM will take the case back to the Supremes (the 2008 remix). And perhaps the Supremes will reject hearing the new case, having heard it already. Then, like the Schiavos, MGM will keep their case under reconsideration for years. Grokster and the rest of us in the lower courts will spend a lot of money defending under this ambiguous ruling, and the entire P2P and streaming industries, not to mention software in general, will operate under the uncertainty that an ax could fall on our necks any June for the next decade. Thanks, you cranky ancient prima donnas with lifetime immunity from accountability! The rest of us have to live with your work for our entire lives, without that guaranteed paycheck. We really spend a lot of money on these Supreme Court justices, for them to produce such a shabby product.
Now, on the heels of that blatantly criminal "eminent domain" ruling, Conservatives will be screaming for new Supremes who "respect property rights" and "hold individuals responsible for their actions". When Bush appoints the most corporate Supremes we can imagine, and puts Clarence Thomas in charge of the court, we'll be stuck with the most corporate court ever, with the most corporate Congress ever, and the most corporate White House possible. Unless Democrats can take back the House and Senate next year, and deliver at least some of the competition with teeth that checks and balances our mechanical government, this country is doomed. And everyone else within its reach - which means everyone else. Funny how that particular blockbuster movie won't be coming out of MGM studios this Summer.
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make install -not war
I have to agree with this ruling even though XEROX may not have been able to pass the smell test.
Clearly XEROX purpose in building a copier was so that people can make legitimate copies of documents.
In the digital world this also can be the objective of file sharing. Please have a look at www.irtc.org
We are now at the point where individuals and groups can create their own copyrighted material. IE. We don't need hollywood or the RIAA. A for instance is the Greatful Dead would gladly have glombed on to a system that file shares.
So - I do not see this ruling as being much of a problem.
I
> promoting its use to DO BODILY HARM
... is liable for the resulting acts of CRIME by third parties using the device, regardless of the device's lawful uses."
Nope, because it's not illegal to do bodily harm. Self-defense may require it. Police and security personnel, and the municipalities that procure them their weapons, could be properly lured by advertisements that promised "bodily harm". But try this out:
"One who distributes a device with the object of promoting its use to COMMIT A CRIME
Make sense now? Once you read it that way, it makes a lot more sense. If I sell you something by saying it will let you break the law, then I can't fall back on its lawful uses once you use it the way I said you should.
Expect an impact on the makers of "radar" detectors.
sigs, as if you care.
The way I read Souter's opinion, he feels that:
Sony is often interpreted as:"Substantial non-infringing uses are an automatic off the hook. for contributory infringement."
But what it really should be is: "The existence of non-infringing uses is just one piece of evidence you can use to try to determine whether a 'conspiracy to commit copyright infringement' occured. But you can also look at whether the company intended, from day one, to be a tool for infringment.
A quote from Souter's opinion:
"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 noninfringing uses. Such a
holding would tread too close to the Sony safe harbor."
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So, I _think_ we're okay. If it really was designed from day one to be a content-neutral system like http or ftp, then no problem. But if you actively marketed to copyright infringers, you can't just use Sony as a "get out of jail free" card.
I'd have prefered a "Yay free speech, down with copyright" opinion myself, but it's not as bad as it could be.
Is this decision the end of the sports car?
You have two hands and one brain, so always code twice as much as you think!
I mean, come on, it was going to happen sooner or later. It would take more than just ingenuity to think that eventually a ruling might show up saying that it's "ok", or that they'd turn a blind eye to it forever.
In my opinion, this ruling might even be beneficial to stir up discussion about how the world of file-sharing will be addressed in the future. It's equally silly to think that they can just keep banning things forever and a well-defined separation line might give a boost to formalizing the legality of certain file-types and encouraging the widespread acknowledgement and proliferation of systems such as GPL.
Of course you won't be able to watch movies for free while someone else is paying for them, but maybe you'll be able to protect the things you can do for free in a much more solid, institutionalized way. Use your legal system wisely. It's there to help you, not as some dark, mindlessly antagonic villain.
The US legal system has widely varying penalties based entirely on intent. If I aim my car at you and run you down, that's murder or assault. If I swerve to avoid a dog and didn't notice you until I hit you, that's a tragic accident. The end result is largely the same, but my liability is vastly different in the two cases.
Intent is everything.
William of Ockham had no beard. The most likely explanation is that it was chewed off by squirrels every morning.
You know as well as I do that "intent" has nothing to do with whether the accused actually intended to do anything. I mean, when you can be arrested for "possession of marijuana with intent to resell" based solely on the amount you have, and not based on any intent you have, then it's clear that "intent" has a different legal meaning than in reality.
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 the very near future, you'll see companies begin to develop and push P2P as a way for people to publish/distribute their own content. The whole podcasting thing is what will make this happen. And with people starting to push into the video realm (Systm, etc) , this will become the defense of the next P2P battle.
Think about it: Somebody creates a client that can grab RSS, publish RSS, share content via BitTorrent/DHT, get content via same, play video/audio/everything under the sun, and integrates into MythTV just for good measure.
The primary, stated, purpose of such a thing is to let people download the free content online and watch it on their spiffy PVR box.
The actual primary use would be to download TV shows and movies and such from other users of the software, using the BitTorrent capabilities inherent in the software (although video-blog type RSS feeds would be in second or third place).
In any case, the revolution will be podcasted.
- Give a man a fire and he's warm for a day, but set him on fire and he's warm for the rest of his life.
I just finished reading the majority ruling, and came back to Slashdot to see whether folks recognized that the ruling wasn't that bad. I'm happy to see that most of the high-rated posts recognize that this ruling is about inducing illegal activity, not about creating software that has a potential illegal use. They took pains to keep the Sony Betamax ruling intact.
Three more good points on that:
- The SCOTUS specifically declined to say that the 10% of legit use was insufficient to prove a lack of legitimate usage.
- Lower courts are prohibited from determining that software creators are liable SOLELY based on the design of the software. I think this is good for software that includes IP blockers. This ruling says it only becomes illegal when you name it "RIAA blocker".
- Footnote 12 - "a court would be unable to find...liability merely based on a failure to take...steps to prevent infringement [by end users]." Meaning P2P devs can't get sued because they refuse to put in "features" to detect illegal downloads.
All in all, not too bad. Could've been much worse. I'm guessing that some of the concurring opinions might be worse, but I can live with that.
I'm attending Black Hat this year and I read an interesting post from Ian Clarke, the creator of FreeNet, on their website. It seems like he was in the midst of creating a truly dark and searchable P2P client. I guess the supreme court will hold him liable now. Here's a link to the posting: http://www.blackhat.com/html/bh-blackpage/bh-black page-2005.html
I'm definitely going to attend his talk at Black Hat to see what else he has to say about this ruling.
... after all, they've a full-page ad in the Wired magazine touting Windows XP for ripping music, remixing it, and sharing ti with our friends. Windows XP makes it easy, if I recall correctly.
That would seem to qualify.
The SCOTUS decision is going to open a huge can of worms. Many ISPs have, for years, sold their broadband service as something that helps you download music at blazing speeds (long before legal services were available) and they permit you to download all sorts of images and content as well as upload content without any sorts of release forms, etc.
If the media companies wanted to, they've got the ammunition now to simply block public access (in the US) to the Internet until a new technology could be developed to limit data exchange to something they approve of.
Yet, I do.
If I sell a gun and all my ads say, "Kids, you can kill your parents tonight with our new Blasto 350", I am encouraging murder. "Kids download all your favorite songs for free with Grokster." I am encouraging copyright infringement, (according to current copyright interpretation.)
That is clearly illegal. (MPAA/RIAA and the Grokster-ilk are both equivalent whores in my book, since they are all trying to make money off of someone elses sweat.)
You could also see how programs that might preload searches of "Currently Showing Hollywood films", are just begging you to download copyrighted material.
On the other hand, a program like eMule, Freenet, etc. is clearly very generic and doesn't care what you download or share, and makes no money off of it.
I see nothing in this that effects Bittorrent, eMule, or the other non-profit file sharing apps at all.
I thought for sure when I saw they had ruled against Grokster that the reading of their ruling would break my heart, yet instead, I feel all the bad people are hurt by this, and the good are unharmed. (Citizens can continue to download and share what they wish to, MPAA/RIAA will continue in the precipitous downfall, and Grokster-leaches will go out of business.)
- I like pudding.
What'd I'd like to know is how this effects Stream Ripping - I use StationRipper daily - originally 'cause I was tired of P2P and the lawsuits related to that. Seemed like a valid "fair use" way to record music. Like my Tivo. Actually... does this mean Tivo is now going to get sued???
seriously - what are the potential implications for those not subject to the US supreme court? will this ruling stifle development in the US such that us brits have fewer apps to choose from? will the EU follow suit? what if i develop grokster-like products and market them to the US - will they then call in the airstrikes? etc etc.
You are right. There are two theories for this type of liability (and this is based on patent law really, rather than copyright law): (1) "actively inducing" another's direct infringement; and (2) selling something that is specifically adapted to facilitate infringement - something that has "no substantial noninfringing use".
The unanimous court opinion was based on the first (active inducement) analysis. That is much less devastating (to P2P, and indeed to the internet as we know it) than a holding based on the second theory (no substantial noninfringing use) would have been.
The concurring opinions were the Ginsburg opinion, to the effect of "who are you kidding, of course this technology has no substantial noninfringing use", and the Breyer concurrence, which says "looks like it may" and that the Ginsburg approach would require trashing the Sony decision.
So the real action, as the OP states, is in the concurring opinions, as to which the vote was 3-3. The "swing votes" here -- the guys who stayed on the sidelines of the concurring opinion debate -- are none other than Scalia, Thomas and the author of the lead opinion, Souter. Better put them in your goodnight prayers.
My guess is that the "swingers" are hoping that this decision will put this issue enough to rest and quell the present ferment just enough that they won't have to revisit it any time soon. I think there is a lot of unease in that quarter about the implications of in effect outlawing an entire technology, and worse, with no clear definition that would differentiate that from virtually any network transaction involving one machine serving content to another. I hope they are right, and will be able to leave this area alone for a while. It takes four votes to accept a case for review.
Close call, folks.
"Of course, in the absence of further 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 noninfringing uses. Such a holding would tread too closely to the Sony safe harbor."
The quote on the front page comes from the CNN/Money Krysten Crawford article, and is partially fabricated.
... is liable for the resulting acts of infringement 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
The words, "using the device, regardless of the device's lawful uses" are not part of the ruling, and as many others have pointed out here, it's actually fairly misleading. I won't speculate on Ms. Crawford's motivations for the misquote, other than that she's probably just a confused journalist who thinks it's OK to bend ethical rules to get a story out.
So doesn't this mean that the Supreme Court has simply ordered the lower court to try the case in light of their new ruling?