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Supreme Court Rules against Grokster 1249

Posted by Hemos
from the toll-the-bells dept.
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.
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Supreme Court Rules against Grokster

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  • What was interesting (Score:4, Interesting)

    by WebHostingGuy (825421) * on Monday June 27, 2005 @11:07AM (#12920450) Homepage Journal
    is that it wasn't even close. It was an unanimous ruling.
    • by EggyToast (858951) on Monday June 27, 2005 @11:16AM (#12920567) Homepage
      It was unanimous, but not in the "any P2P software is illegal" sense, but in the "if you push your p2p software as a means for infringing copyright, you're just as guilty"

      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.

      • by WebHostingGuy (825421) * on Monday June 27, 2005 @11:19AM (#12920626) Homepage Journal
        I agree. What I think 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 and not for the original intent of the software. And in this case the Justices saw right through that.
      • by tambo (310170) on Monday June 27, 2005 @11:33AM (#12920816)
        It was unanimous, but not in the "any P2P software is illegal" sense, but in the "if you push your p2p software as a means for infringing copyright, you're just as guilty"

        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

        • by ldanna (39676) on Monday June 27, 2005 @11:49AM (#12921018)
          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.
          It has always been their policy to issue as narrowly worded a decision as can decide the case before them. It's not "theese days", it's the full history of the court.
          • by advocate_one (662832) on Monday June 27, 2005 @12:29PM (#12921475)
            It has always been their policy to issue as narrowly worded a decision as can decide the case before them. It's not "theese days", it's the full history of the court.

            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.

          • by tambo (310170) on Monday June 27, 2005 @12:50PM (#12921713)
            It has always been their policy to issue as narrowly worded a decision as can decide the case before them. It's not "theese days", it's the full history of the court.

            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

        • by drakaan (688386) on Monday June 27, 2005 @11:52AM (#12921038) Homepage Journal
          It was unanimous, but not in the "any P2P software is illegal" sense, but in the "if you push your p2p software as a means for infringing copyright, you're just as guilty"...

          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.

          • by CompSci101 (706779) on Monday June 27, 2005 @12:12PM (#12921284)
            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
          • by commodoresloat (172735) on Monday June 27, 2005 @12:37PM (#12921574)
            I don't know what they're smoking in the court these days

            Unfortunately, it's not medical marijuana.

          • by ray-auch (454705) on Monday June 27, 2005 @12:49PM (#12921704)
            they said "making a piece of software that's marketed as a vehicle for copyright infringement is illegal."

            Wrong. RTFA (and the order).

            Nowhere do the words "making a piece of software" appear.

            They are solely ruling on _distribution_ and distribution with demostrated prior intent at that.

            ... one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement,...

            Essentially they _are_ ruling that the promotion is the illegal bit - since without it or other "affirmative steps", the distribution of the device is not (for this reason) illegal.

            What interests me is "with the object" and whether this means "with the sole object" - eg. Apple's rip-mix-burn campaign was only one promotion for one aspect of the Mac, so did they distribute "with the object of..." ? I don't think so, but IANAL - I think they are saying that the promotion of infringement has to be your only intent.

            Note also that they are quite clear that they are not overturning Sony, and that the non-infringing uses tests still apply, just that they don't get you off the inducement hook:

            Liability under our jurisprudence may be predicated on actively encouraging (or inducing) infringement through specific acts (as the Court's opinion develops) or on distributing a product distributees use to infringe copyrights, if the product is not capable of 'substantial' or 'commercially significant' noninfringing uses. Sony, 464 U. S., at 442; see also 3 M. Nimmer & D.Nimmer, Nimmer on Copyright 12.04[A][2] (2005). While the two categories overlap, they capture different culpable behavior.
        • by MooseGuy529 (578473) <i58ht6b02.sneakemail@com> on Monday June 27, 2005 @11:52AM (#12921046) Homepage Journal
          They're good at weaseling out of such decisions these days - quite a shame.

          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"!

          • by ianscot (591483) on Monday June 27, 2005 @12:15PM (#12921312)
            You shouldn't be encouraging the Supreme Court to make extreme decisions just to avoid "weaseling"!

            Bravo. What is it with our culture now? Making mature, considered decisions about something, decisions that require other parties to consider them outside the world of newsbites and so on, is now considered a sign of weakness, is it?!?

            A moral person isn't someone who makes a confusion of rash, instinctive decisions about right and wrong. Moral people struggle to figure out what to do, and often their decisions are qualified by the stuff they've considered along the way. It's called being a danged adult.

            The Supreme Court, for all the current right-wing majority's nascent authoritarian learnings, is not in the business of sweeping decisions that reach far beyond the cases brought before them. Their 10 Commandments decision's coming up, and they're not going to be extending it to cover "In God We Trust" and evolution in schools just because they want to take a stand. There's a process, and it's not weak or waffly to follow it.

            How mature are we, anyway?

      • The lower courts reasoned that, like VCRs, the file-sharing software can be used for "substantial" legal purposes, such as giving away free songs, free software or government documents. They also said the file-sharing services were not legally responsible because they don't have central servers pointing users to copyright material.

        But in Monday's ruling, Souter said lower courts could find the file-sharing services responsible by examining factors such as how companies marketed the product or whether they took easily available steps to reduce infringing uses.


        In other words, this ruling doesn't say "Grokster is responsible for the infringing acts of their customers". It says "If a company promotes a product for infringing use, the Betamax decision doesn't give them a free pass". It's up to the lower court to determine if Grokster actually crossed the line.
      • by AviLazar (741826) on Monday June 27, 2005 @11:40AM (#12920905) Journal
        I totally agree with you, but my two cents (Matter replicater creates my first tin-foil hat).

        Small Steps
        First make p2p's, that specifically advertise their copyright infringement policies, illegal.
        Second take it one step further to p2p's that do not filter copyright infringement content are shut down
        Third step force reporting on people who circumvent the filtering software
        Forth step force reporting of all p2p users
        Fifth step ban all p2p programs

        Maybe not in this order, maybe not even complete, but small steps. The ruling the supreme court's made is totally fine with me - well because I agree copyright infringement is wrong. I just get worried about the next steps.

        So a toast to my first tinfoil hat.
    • by Mr. Maestro (876173) * on Monday June 27, 2005 @11:17AM (#12920593)
      Even more thought provoking is this...

      "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."

      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 ... is liable for the resulting acts of BODILY HARM by third parties using the device, regardless of the device's lawful uses."

      You could replace almost ANYTHING. I think they have set a VERY POOR precedent. All IMHO of course...
      MM
      • by rhsanborn (773855) on Monday June 27, 2005 @11:25AM (#12920696)
        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.
      • by Chris Burke (6130) on Monday June 27, 2005 @11:34AM (#12920821) Homepage
        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.
      • Two problems with this:

        1. I suspect the majority of gun owners use their guns lawfully.

        2. Guns are generally promoted for legal purposes (hunting, self defense, preventing the King of England from invading Massachussets, etc.)

        3. Even if both or either of the above were untrue, Guns get a special exemption being, as they are, protected under the second amendment. The Constitution doesn't have anything similar when it comes to P2P clients:

        A reliable network for the distribution of content, being ne

      • by RealProgrammer (723725) on Monday June 27, 2005 @11:44AM (#12920962) Homepage Journal
        > promoting its use to DO BODILY HARM

        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 ... is liable for the resulting acts of CRIME by third parties using the device, regardless of the device's lawful uses."

        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.
  • 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?
  • by rwven (663186) on Monday June 27, 2005 @11:08AM (#12920464)
    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....
    • by anonicon (215837) on Monday June 27, 2005 @11:15AM (#12920546)
      "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.
    • First, let me say that I don't agree with this ruling. That said:

      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.

    • 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....

      I'll bite: first of all, the previous rulings could have been wrong (try Korematsu v. US [findlaw.com]). Secondly, a good part of the US legal community (especially on the so-called "liberal" side), believes that the meaning of the constitution does depend on time. For example, that a cit

  • by KiroDude (853510) on Monday June 27, 2005 @11:08AM (#12920466)
    He's the first to blame for creating windows and making it possible to run programs on it that will allow for file swapping!
  • Great (Score:5, Interesting)

    by mcc (14761) <amcclure@purdue.edu> on Monday June 27, 2005 @11:08AM (#12920469) Homepage
    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?
    • Re:Great (Score:4, Funny)

      by RevengeOfPoopJuggler (872968) on Monday June 27, 2005 @11:13AM (#12920531) Journal
      I wouldn't count on the Supreme Court even understanding what you just said, let alone give you a favorable ruling...
      • Re:Great (Score:5, Insightful)

        by Daniel Dvorkin (106857) * on Monday June 27, 2005 @11:23AM (#12920674) Homepage Journal
        I wouldn't count on the Supreme Court even understanding what you just said, let alone give you a favorable ruling...

        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 ... 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.
  • And? (Score:3, Insightful)

    by mpitcavage (655718) on Monday June 27, 2005 @11:09AM (#12920472)
    "Come use my software for only legitimate reasons"

    See? Now I'm good.
  • Well, (Score:3, Insightful)

    by erveek (92896) on Monday June 27, 2005 @11:09AM (#12920473)
    Betamax was fun while it lasted.
  • Double standards (Score:3, Insightful)

    by Yusaku Godai (546058) <hyuga@nOspAm.guardian-hyuga.net> on Monday June 27, 2005 @11:09AM (#12920481) Homepage
    Does this mean that gun companies can now be held accountable when third-parties commit crimes with a gun?
    • .. which means that Hollywood should be liable for promoting the use of guns for killing people whenever they show guns being used for killing people ..

      Now that is something I'd like to see ...
  • All Is Not Lost (Score:3, Informative)

    by kaellinn18 (707759) on Monday June 27, 2005 @11:09AM (#12920483) Homepage Journal
    The EFF has an interesting response [eff.org] on the situation.
  • Well... (Score:3, Insightful)

    by TrippTDF (513419) <hiland@gmail. c o m> on Monday June 27, 2005 @11:10AM (#12920485)
    That's the first step towards the out-and-out outlawing of all peer-to-peer programs that are not created by the copyright holder.... It's not hard to argue that BT or eMule or any of the others silently promote piracy.

    Of course, this is not the end to piracy... just a new step...
  • by Enigma_Man (756516) on Monday June 27, 2005 @11:10AM (#12920487) Homepage
    I use IE to do all my piracy, now they can finally have a legal leg to stand on to make MS get rid of the damn thing. After all, what other intent than downloading of (pirated) data could a browser have? Same goes with any P2P app, what other intent could it have, I ask?

    -Jesse (please note the sarcasm, people)
  • So (Score:5, Interesting)

    by paranode (671698) on Monday June 27, 2005 @11:11AM (#12920503)
    We always kind of assumed that something like BitTorrent would be safer because it has more legit uses than most P2P software does. However with this ruling and the elaboration that the legal uses are more or less not relevant if it can be used for mass copyright distrubution, I wonder if this will spell doom for BitTorrent and similar programs.

    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.

    • Re:So (Score:3, Insightful)

      by tgtanman (728257)
      The quote from Justice Souter says that the legal uses are only irrelevant if the software is distributed "with the object of promoting its use to infringe copyright." While this may be true of many other P2P programs, BitTorrent is used daily to transfer large ammounts of legal materials. The only people who could be held liable at the people who host the trackers and/or link to them.
    • Re:So (Score:5, Interesting)

      by Sabalon (1684) on Monday June 27, 2005 @11:24AM (#12920687)
      BT was designed (IIRC) to help distribute large (Linux) iso's. I just looked at the official BT page and there is really nothing there endorsing anything - it's more of a "hey...look at the geeky cool thing I made" page.

      However, if you look in the FAQ, it points to two places for content to download:

      http://bt.etree.org/ [etree.org] and http://smiler.no-ip.org/BT/BTlinks.php [no-ip.org]

      The first one looks to be bootlegs of bands that allow bootlegging. The second, is a more of an all-things-BT clearninghouse, with links to more questionable sites among legit items.

      So, how much infringing encouragement does BT have? What if I made my own client and billed it as the best video store next to Blockbuster? Is just that client liable, or is BT as a whole now advertising infringing uses?

      I have a feeling that this won't be the last that SCOTUS will hear of this case.
    • Re:So (Score:4, Informative)

      by restive (542491) on Monday June 27, 2005 @11:56AM (#12921093)

      That is a good view, but Thomas Jefferson did not write any of the Federalist Papers. http://www.foundingfathers.info/federalistpapers/ [foundingfathers.info]

      Thomas Jefferson was not a Federalist; rather, he was a Republican and upon becoming President tried to unite the groups.
  • RTFR (Score:5, Informative)

    by l2718 (514756) on Monday June 27, 2005 @11:12AM (#12920505)

    I think we should wait for the text of the ruling to be posted online (to happen here) [supremecourtus.gov] before rushing to say "the sky is falling". We'll be much wiser after reading what they had to say.

    AP has a story [ap.org]. It seems the ruling turned on the grounds that they distributed the software "with the object of promoting infringement of copyright", and that they may be liable for third-party infringement by their users, depending on how egregious this promition was. We'll only know had bleak the future is though after reading what the justices had to say.

  • Good decision (Score:5, Insightful)

    by nuggz (69912) on Monday June 27, 2005 @11:12AM (#12920508) Homepage
    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.
    • Re:Good decision (Score:5, Interesting)

      by 16K Ram Pack (690082) <tim,almond&gmail,com> on Monday June 27, 2005 @11:35AM (#12920840) Homepage
      You can benefit from the illegal use, you just can't promote the illegal uses.

      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.

  • by pgrote (68235) on Monday June 27, 2005 @11:12AM (#12920512) Homepage
    The interesting thing is that it appears that the protection of the betamax case has been removed when it comes to P2P. Some people think that this will open the floodgates of lawsuits regardless of whether something is advertised to having infringing value or not.

    http://www.slyck.com/forums/viewtopic.php?t=12277 [slyck.com]
  • by B1llz0r (854214) on Monday June 27, 2005 @11:12AM (#12920518)
    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).
  • by Achra (846023) on Monday June 27, 2005 @11:13AM (#12920529) Journal
    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.
  • by jratcliffe (208809) on Monday June 27, 2005 @11:14AM (#12920534)
    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.
  • by dslmodem (733085) on Monday June 27, 2005 @11:14AM (#12920536) Journal
    or am I the only confused?
  • by ky11x (668132) on Monday June 27, 2005 @11:14AM (#12920541)

    How are you supposed to read the minds of the developers to figure out if they "intended" to promote illegal use? Almost every designer of P2P software probably knew perfectly well that the service would be used to trade illegal copies, but they also believed that distribution of legal content is also something that would be promoted. Would it have to be "primary intent" to promote illegal use or just "secondary intent" is enough?

    Also, in such "dual use" cases, it's strange to say that the service must be held liable only because the creator knew that illegal uses could be made of it and openly admitted it (equivalent to "promotion"). You end up cutting out all the legal uses too. This is the sort of "chilling efects" that we don't want to happen under the 1st Amendment.

    • by mooingyak (720677) on Monday June 27, 2005 @12:01PM (#12921140)
      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.
  • by EQ (28372) on Monday June 27, 2005 @11:15AM (#12920554) Homepage Journal
    As I mentioned in my submission a while ago (when the ruling broke on CNBC) that apparently got there right after this one:

    This yanks the Betamx case from underneath Grokster, and forces a trail in the 9th circuit. Bascially, it gives the MPAA and RIAA a big biag hammer, and the only thign stopping is is the amount of money Grokster can spend at trial. This may bankrupt them, cause the cause te be decided by money, instead of a jury. And even then, an ignorant jury can issue some pretty bad verdicts.

    Teh worst thing? Betamax no longer protects P2P - the Supremes have screwed the Betamax ruling over. Under thier ruling, the whole internet can be shut down and ISP's sued for infringement becuase they provide something that might be used for infringement.

    What the hell is wrong with the courts? Its akin to convicting a woman of prostitution becasue she is "equipped" to commit the crime.

    First the States rights are trampled in the Med Marijuana case, then the individual rights are trampled in the "Takings" case, now online rights are trashed in the Grokster case. The Supreme court needs to be reigned in. Or they are looking at triggereing a second American revolution.

    Johnny, get your gun.
  • by Dr Kool, PhD (173800) on Monday June 27, 2005 @11:16AM (#12920568) Homepage Journal
    "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.
  • Hmmmm.... (Score:3, Insightful)

    by smitty_one_each (243267) * on Monday June 27, 2005 @11:16AM (#12920574) Homepage Journal
    The case is considered so pivotal that 55 amicus briefs have been submitted. The National Football League, the Christian Coalition and various artists are among those weighing in on the entertainment side. AT&T, Intel, the ACLU and the American Conservative Union have filed on behalf of the tech side.
    I cringe at the mixing of the Chistianity with business, politics, and law; often, it can imply a Peter-esque loss of eye contact with the Great Commissioner.
  • by overshoot (39700) on Monday June 27, 2005 @11:16AM (#12920582)
    Old legal maxim. The problem here is that Grokster was patently setting out to work around the law, and as an unsympathetic defendent they were the RIAA's ideal target in their attempt to overturn Betamax.

    I'm waiting to see the decision, but from the sound of it the Court did about as well as I could hope: rather than address the technology point, they addressed the business model. For now, it seems, Bram Cohen [bittorrent.com] is safe.

  • by Henry V .009 (518000) on Monday June 27, 2005 @11:18AM (#12920602) Journal
    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.
  • More info. (Score:5, Informative)

    by furry_wookie (8361) on Monday June 27, 2005 @11:21AM (#12920649)
    If you want to read more info about this case, the EFF has a large amount of information about it on their website. [eff.org]. There are copies of documents, filings, articles, press conference audio etc.

  • by CashCarSTAR (548853) on Monday June 27, 2005 @11:22AM (#12920668)
    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.

  • Bittorrent is safe (Score:3, Insightful)

    by MobyDisk (75490) on Monday June 27, 2005 @11:31AM (#12920788) Homepage
    This ruling means that Bram Cohen [bittorrent.com] is not liable for all you jerks stealing anime. Yaaay! And it means that Bittorrent and Gnutella and similar P2P technologies are safe.
    ...developers of software violate federal copyright law when they... take "affirmative steps to foster infringement..."
    This means that I can write and develop and research and use P2P software, so long as I don't promote the technology as a way to steal (sorry, "Copyright Infringement"). To me, this makes a lot of sense.

    To use an analogy: I can sell guns. I just can't sell them with a slogan like "Number 1 tool for killing your ex-wife!" And I can't sell a P2P app named "Most efficient piracy software for pr0n and anime!" But the technology is safe.

    This is good because it means The Supreme Court found a way to see through the jerks who are abusing this stuff without stifling innovation.

  • by spiritraveller (641174) on Monday June 27, 2005 @11:32AM (#12920796)
    To be liable, you have to make a clear expression or take affirmative steps to foster infringement. That purpose of fostering infringement has to be proven with evidence.

    Bram Cohen is not guilty. Tim Berners-Lee is not guilty. Settle down.

    Read the opinion [ap.org].

    We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.

    ...

    In sum, this case is significantly different from Sony and reliance on that case to rule in favor of StreamCast and Grokster was error. Sony dealt with a claim of liability based solely on distributing a product with alternative lawful and unlawful uses, with knowledge that some users would follow the unlawful course. The case struck a balance between the interests of protection and innovation by holding that the product's capability of substantial lawful employment should bar the imputation of fault and consequent secondary liability for the unlawful acts of others.

    MGM's evidence in this case most obviously addresses a different basis of liability for distributing a product open to alternative uses. Here, evidence of the distributors' words and deeds going beyond distribution as such shows a purpose to cause and profit from third-party acts of copyright infringement. If liability for inducing infringement is ultimately found, it will not be on the basis of presuming or imputing fault, but from inferring a patently illegal objective from statements and actions showing what that objective was.

  • by Kaa (21510) on Monday June 27, 2005 @11:38AM (#12920882) Homepage
    Opinion by Justice Souter: http://wid.ap.org/scotus/pdf/04-480P.ZO.pdf [ap.org]

    Concurrence by Justice Ginsberg:
    http://wid.ap.org/scotus/pdf/04-480P.ZC.pdf [ap.org]

    Concurrence by Justice Breyer:
    http://wid.ap.org/scotus/pdf/04-480P.ZC1.pdf [ap.org]
  • Directors Cut (Score:5, Interesting)

    by Doc Ruby (173196) on Monday June 27, 2005 @11:42AM (#12920933) Homepage Journal
    These Supremes answered the wrong question. They were asked to validate or repudiate the lower court's opinion. Which was [eff.org] 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" [schneier.com].

    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 [slashdot.org], 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.
    • Re:Directors Cut (Score:4, Interesting)

      by ckokotay (206080) on Monday June 27, 2005 @12:10PM (#12921249)
      Ummm.... In case you didn't read, your so-called evil conservatives were the ones writing the dissent on the emminent domain ruling. Yes, Clarence Thomas, Rhenquist, Scalia, and O'Connor all felt strongly that the government should NOT be allowed to seize your property - whilst all the liberal judges (yes - some of the liberal judges were appointed in compromise by Republican presidents) voted that the government should be allowed to take your property under any circumstances.

      Therefore - your post makes no sense - in the first sentence you laud the ruling as blatently criminal, and then go on to criticize those who voted against it. Usually when liberals talk out of both sides of their mouth, they reserve it for at least a seperate paragraph - not the next sentence.
  • 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
  • by overshoot (39700) on Monday June 27, 2005 @12:37PM (#12921566)
    The really fun stuff is in the concurring opinions. The Court's unanimous ruling was simply that the Ninth Circuit and the District Court read too much into Sony, and that Sony only applied in the absense of demonstrated intent. Remember, they were reversing a summary judgment.

    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.

    • by dilute (74234) on Monday June 27, 2005 @03:19PM (#12923564)
      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.
  • by harlows_monkeys (106428) on Monday June 27, 2005 @12:49PM (#12921707) Homepage
    From the first paragraph of the ruling:

    The question is under what circumstances the distributor of a product capable of both lawful and unlawful use is liable for acts of copyright infringement by third parties using the product. We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.
    This won't be a problem for BitTorrent.
  • by Otik2 (317009) <`joel486' `at' `gmail.com'> on Monday June 27, 2005 @01:10PM (#12921976) Homepage
    The judgment is available here [akamaitech.net] (linked to from here [supremecourtus.gov]). 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.
  • by cwhicks (62623) on Monday June 27, 2005 @01:50PM (#12922469)
    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.)
  • Fabricated quote (Score:4, Interesting)

    by JonToycrafter (210501) on Monday June 27, 2005 @04:32PM (#12924634) Homepage Journal
    The quote on the front page comes from the CNN/Money Krysten Crawford article, and is partially fabricated.

    "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 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.

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