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.

If you don't promote it that way, then what?

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?

Re:If you don't promote it that way, then what?

It's not about declarations. It's about intentions. If you act in a way actively against sharing copyright material, you should be okay. It's hard to believe that anyone would be so naive as to expect people to only use something like Grokster for legitimate purposes.

Unfortuantly, the only way to know is to be sued

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.

Great

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

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.

So

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

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.

RTFR

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

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.

Promoting Infringement

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).

Bittorrent doesn't promote illegal use

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.

Big Margin Surprising, But Not the Ruling

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.

Makes sense, pretty much

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.

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.

The RIAA/MPAA win the battle...

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.

Before everyone freaks out...

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.

Re:Thus Proving the Incompetence...

"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.

Re:Thus Proving the Incompetence...

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.

Re:All Is Not Lost

It's actually not a response. That came out several days ago. I'd been expecting it on Slashdot but it never came.

Re:What was interesting

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.

Re:What was interesting

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

This seems like a very narrow and careful ruling.

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.

Re:What was interesting

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.

Re:What was interesting

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.

Re:I'm Sad...

"The Supremes used to make sense."

I agree, "Baby Love" was a great song.