SCOTUS: Grokster vs. MGM

[DavidOdden]

I don't know anything about the Grokster case, so maybe someone else can elaborate.

Okay, now that I've looked at that... the court held unanimously that theft is theft, and you can't just claim "but we didn't know that people would use this illegally" when it's hardly possible to use that product legally. Apparently Scalia wasn't being a total wanker last week. I actually think this was the most important decision of the day, because it's about the bleeding edge of disrespect for property which is rampant among young punks.

[Lemuel]

Hooray! A good decision from SCOTUS!

Of course, I haven't read the decision yet, so it could be full of faulty logic, even though I dig the outcome.

[DavidV]

I don’t know the details of the ruling, but I would be more careful about applauding it.

1) Does offering free software on a website qualify as “interstate commerce”?

2) If you create a tool with the potential for illegal use, does that make you criminally liable? For example, DVD-burners are commonly used to pirate movies – are the manufacturers criminally liable for infringement? There is also P2P software made explicitly for the purpose of circumventing censorship – is the author liable if it is used contrary to his intentions?

3) Software in source form is a form of speech. Is making the publishing of certain source code illegal censorship?

[DavidOdden]

The case involves copyright infringement, and the fact that Grokster and others knowingly contributed to copyright infringement. One of the fundamental facts about their actions is that they provided plenty of evidence of intent (they advertised their evil intent), and they actively encouraged theft, having the specific objective of distributing software which would allow individuals to illegally copy protected works. No steps were taken to distinguish between legal and illegal copying or to privide filtering of any type. Their hope was to hide behind the shield of "actual knowledge" and "we didn't actually do the copying". That defense is analogous to aiding and abetting in a murder but not actually pulling the trigger. It does mean, for example, that if you supply a gun to a killer, you are not by that act alone guilty, but if you supply a gun knowing of the person's intent to kill, then you are responsible.

I suspect that anything "on the web" is interstate, since it's probably impossible at this point to limit access to a web site to just one state, unless you can limit access to a single domain in a building, or something like that. But the Commerce Clause also doesn't seem to be relevant, since the issue of copyright.

The issue in this case does not seem to be the potential to use software illegally -- pencils can be used illegally. VCRs can be used illegally, but their primary use is a legal one and Sony (to mention the relevant earlier case) did not distribute VCRs with the desire to promote illegal copying, thus was thus not liable for selling VCRs. In fact, SCOTUS tweaks the nose of the lower court for having mistakenly thought (given Sony) that if a product imaginably has a legal use, then you cannot be held liable for any illegal uses.

Prohibiting the publication of source code (if it's your property) is clearly censorship -- I don't know if it's illegal censorship. The feature which distinguishes Grokster is the deliberate advocacy of theft.

[softwareNerd]

The feature which distinguishes Grokster is the deliberate advocacy of theft.

There are some "hacker" magazines that describe techniques to hack into systems. I find it amusing how many of the articles start with a paragraph saying that the article is just to help people learn and that nobody should use the information for any illegal activity.

What if Grokster had followed such a policy. Does the ruling of the court make clear that they would have won the case?

Further, what if Grokster had consistently said "stay legal", while another site (say "MockSter" was encouraging people to use Grokster illegally. Would the court's ruling ban MockSter but allow Grokster?

I have not read the ruling yet, but would really like to understand how delimited it is and how much scope exists for a "slippery slope".

[DavidV]

I recommend reading the amicus curiae filed by Intel Corp. in support of the defendants:

http://www.eff.org/IP/P2P/MGM_v_Grokster/20050301_intel.pdf

Intel also recognizes that the law limits the scope of

intellectual property protection and does not believe that

existing law permits the dramatic expansion of secondary

liability urged by Petitioners.

Expanding the scope of secondary liability for products

that are capable of substantial noninfringing uses would chill

innovation and stifle the development of new generations of

Intel’s products, including products designed to enhance

lawful access to copyrighted works. Intel invests billions of

dollars annually in the development of new products.4 The

products Intel develops and the products that other

technology companies develop using components designed

and manufactured by Intel are essentially tools that, like any

tools, are capable of being used by consumers and businesses

for unlawful purposes. Dramatic ally expanding secondary

liability law, as urged by Petitioners and their supporting

amici, would cause vast uncertainty, curbing investment in

new technologies that might be put to infringing uses, all to

the detriment of the public and the economy.

Intel is the 4th biggest holder of patentable technology in the world - their argument should not be taken lightly.

Edited July 2, 2005 by GreedyCapitalist

[DavidOdden]

I have not read the ruling yet, but would really like to understand how delimited it is and how much scope exists for a "slippery slope".

With law, there is vast scope for slippery slope. This case falls in the category of "aiding and abetting", which is itself not a crisply defined act. A rational legal system would prohibit not just actually murdering a person, it should also prohibit aiding and abetting murder. One characterisation of aiding and abetting is that you know of the nature of the intended act, you associate yourself with the act, you participate as a thing you want to happen, and do things in a way that the make the act succeed. Unfortunately, we don't have access to the full set of facts that were considered at the trial, and courts can't reconsider facts, just reasoning. What representation of the facts as is available indicates that Grokster & StreamCast did "aid and abet".

The holding focuses on the "intent to aid infringement" aspect, and not the particular technology. The lead sentence of the holding states (appropriate emphasis added) "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, going beyond mere distribution with knowledge of third-party action, is liable for the resulting acts of infringement by third parties using the device, regardless of the device’s lawful uses". They clearly distinguished this from Sony which was an attempt to assign liability to VCR manufacturers because VCRs can be used to violate copyright law, observing that "there was no evidence that Sony had desired to bring about taping in violation of copyright or taken active steps to increase its profits from unlawful taping", in contrast to the Grokster case with its evidence of intent to promote infringement. The technology is not the crime: from what I can tell, the underlying technology was developed by someone other than Grokster and StreamCast, and the technology developers are not the ones getting sued.

(One important detail is what SCOTUS did. The lower courts granted summary judgment in favor of Grokster on the grounds that Grokster did not have "actual knowledge of specific acts of infringement". SCOTUS ruled that that is not the only basis for liability, and has bounced the case back down -- presumably the plaintiffs will prevail since the fact of advocating infringement seems to be established)