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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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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.
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.
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.
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
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 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.