Siva on Grokster at Salon

Supreme Court’s unsound decision

The peer-to-peer phenomenon is often miscast as the proliferation of a radical set of technological tools meant to steal music. But the fact is, the Internet is fundamentally peer-to-peer. All that Grokster, Kazaa, or LimeWire do is let you efficiently search for keywords of content that sits on other people’s hard disks. If you have a problem with peer-to-peer you have a problem with the Internet. And short of shutting it down or radically reengineering it, there is nothing that Hollywood or Washington can do to stifle the file-sharing capabilities of those who use the Internet. Regardless of Monday’s decision, the software, music and movies will keep on flowing.

But the grand innovations in American technology may not. If the lower courts read the court’s ruling broadly, watch out: This could severely restrict other, more important innovations for decades to come. Even without broad readings, the courts could soon be filled with frivolous copyright suits against technology companies — handing big entertainment companies like MGM a potent economic weapon to wield against smaller innovators and upstarts that are developing new devices and models of distribution. Souter struggled to construct a decision that would not impede the inventor in her garage who is tinkering away at the next great thing. The problem is, she will definitely have to hire a lawyer now.

[…] What about Google? Consider this: Google, like Grokster, is primarily a search engine. Its business model relies on advertisements. And the more we use Google, the more money it makes. Like Grokster, Google resolves communication queries. It generates a link from an information provider to an information seeker. And almost all of what it delivers is copyrighted.

The fact that no major copyright industry player has brought Google to court so far is merely a function of the fact that most copyright holders want Google to index and offer links to their materials. There is no explicit contract. You have to opt out of the Google world.

But there is one major difference between Grokster and Google. Grokster does no copying itself. It merely induces and enables.

If anyone infringes, it’s Google: The company caches millions of Web pages without permission (again, giving copyright holders the option of protesting).