Grokster Outrage
The “copyleft” community is having a field day with the Supreme Court’s Grokster decision, but it’s not that big a deal. This is the very first paragraph of the decision :
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.
In other words, since Grokster was marketed as software to break the law, they should be held liable for…well..breaking the law. I wouldn’t have a problem with that standard being applied to a product that was designed to bypass car alarms, so I don’t really have a problem with it here either. Besides, the real decision was to knock this back down to the lower courts anyways. I just hope that when it lands there that they don’t put too much emphasis on this portion of the decision :
Finally, there is no evidence that either company made an effort to filter copyrighted material from usersÂ’ downloads or otherwise impede the sharing of copyrighted files. Although Grokster appears to have sent e-mails warning users about infringing content when it received threatening notice from the copyright holders, it never blocked anyone from continuing to use its software to share copyrighted files.
If that becomes the standard by which software’s legality is judged (which I doubt, but you never know…), then I’m sure we can look forward to lawsuits against the people who wrote Sendmail, Apache, and the TCP/IP protocol next.
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See page 22, footnote 12 and the accompanying text. The court there suggests that a lack of affirmative steps to prevent illegal use is only relevant when accompanied by other evidence of malintent. I am given pause, however, that there appears to be no standard enunciated for the level of such other evidence required before the lack of protective features becomes relevant (though I’ve only skimmed the opinion). Is simple prior knowledge of a potential infringing use sufficient to trigger a duty to include measures to protect against such use? Maybe there is sdomething more in the opinion on this, but I expect to see cases down the road mapping out when exactly arises the duty to prevent infringing uses.
Comment by E-mart — June 27, 2005 @ 1:42 pm
The first paragraph doesn’t fit with reality though. Because Grokster was the focus of this case, let’s use them as an example. Their website states: “Please take great care not to accidentally share files that are confidential or which you do not have the right to distribute.” (emphasis mine)
If that is considered to be “promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement” then we have a BIG probelm here.
Comment by dolphin — June 28, 2005 @ 9:22 am
dolphin-
That may be what Grokster says NOW, but I believe that when it was launched it promoted “music, movies, for free!” and actively encouraged trading copyrighted material to get people to use its service.
Comment by Dave — June 28, 2005 @ 10:14 am