Grokster Roundup

Well, I still haven’t read the opinion, but here’s a set of articles that purport to explain it all to you. While it appears that the innovation issues raised to get mention, most writers seem to be falling back on the tired “theft” argument, rather than asking whether the construction of copyright is as misguided as their misguided and perjorative conflation of copyright infringement with thievery.

And, of course, since this is formally only a remand, there’s still the question of what it will take to make the apparently necessary showing of intent to promote infringement to actually win a suit. Mind-reading is not that easy to accomplish, even if the Supreme Court says you are now allowed to. But the chilling effects of the assertion that now one must consider such things when devising new technology in the face of increasingly calcified legal constructs is the real worry here.

  • CNet has a roundup of articles:

  • Boston Globe: Suits OK’d against makers of file-sharing software [pdf] and Some doubt ruling will stop downloading [pdf]. Worse, this nasty editorial: High court harmony [pdf]

  • NYTimes: Justices Reinstate Suits on Internet File Sharing — this article at least points out that it’s still up to the courts to make a ruling, as well as putting a lot of faith in the notion that “inducement” is something that distinguishes legal and illegal technology deployment

    On the other hand, groups including the American Civil Liberties Union, Consumers Union, the Consumer Electronics Association and other elements of the computer and technology industries warned the court that too broad a rule of contributory copyright infringement would stifle innovation if there was a possibility that consumers might put a product to an infringing use.

    It was clear from the opinion, Metro-Goldwyn-Mayer Studios Inv. v. Grokster Ltd., No. 04-480, that the justices had taken note of that argument and tried to draw a line that would protect both copyright holders and innovators. The court identified the line as “inducement” – deliberately urging consumers to make illicit use of the product or showing them how it could be done.

    “Mere knowledge of infringing potential or of actual infringing uses would not be enough here to subject a distributor to liability,” Justice Souter said. He added: “Nor would ordinary acts incident to product distribution, such as offering customers technical support or product updates, support liability in themselves. The inducement rule, instead, premises liability on purposeful, culpable expression and conduct, and thus does nothing to compromise legitimate commerce or discourage innovation having a lawful promise.”

  • Another NYTimes view: No Pot of Gold in Court Ruling for the Studios

  • Washington Post: File-Sharing Firms Can Be Held Liable [pdf]

  • Wired news’ Grokster Loss Sucks for Tech

  • Slate’s A Supreme Court Conversation – Part 6

    The most interesting part about Grokster is that it purports to leave Sony untouched, while adding this new cautionary against operating a crooked business. In other words, the court is saying that it’s all about the marketing. By this logic, if Xerox in the 1970s had said,”Don’t buy that textbook—photocopy it!” the photocopier, just like that, would have become contraband.

    If a rule that’s based on marketing seems odd, that’s because it is. Can we really know, by looking at a company’s ads, whether they’re up to no good? The aftermath of Grokster will be a long debate over what exactly it means to “promote” violations of copyright. […]

    What the court is doing boils down to asking judges to be on the watch for monkey business. In the eyes of the justices, companies like KaZaA and Grokster were clearly up to no good, but iTunes—now there’s a respectable operation. What the court is trying to do, however awkwardly, is prevent copyright from killing new technologies while at the same time preventing scofflaws from getting away with the technological equivalent of murder. The result is almost like a rule of etiquette—yes, you can sell something that will destroy the recording industry, as long as you don’t flaunt it. That’s a lesson that’s already been learned by Steve Jobs’ iTunes, the leading legitimate music download service. The court, in short, has cursed KaZaA, blessed iTunes, and told us that TiVo is OK, too. And while today’s decision nominally declares victory for the recording industry, I doubt there will be much celebration going on in industry headquarters tonight.

A reader points me to further roundups (thanks, Luis!) — while pointing out that it’s worth reading the opinion for yourself [something I have not yet managed 🙁 although links are here]

A Wall Street Journal roundtable

Later: a glowing Washington Post editorial: No License to Steal [pdf]