Lots is being written about the Grokster oral argument yesterday. Copyfight is a great place to start: Supreme Court Worried About "the Guy in the Garage"; Scalia: How Can an Inventor Know How an Invention Will Be Marketed?; NYT on the Grokster Oral Arguments; and, Wait - There's More. Keep checking back for updates.

Rather than look at all the commentary, I want to look at a couple of places where some of the authors don't get it. Take, for example, Slate, which publishes a decent review of the argument but ends with this appalling analogy (Grok Around the Clock):

Here's an illuminating analogy courtesy of Judge Richard Posner, who wrote the 7th Circuit decision in Aimster: If you open a massage parlor and hire masseuses who you know are really selling sex, then you're breaking the law. Maybe you think prostitution should be legal? Try telling that to the cops.

Illuminating? Misleading is more like. The owner of the faux massage parlor will have the right (and duty) to police and inspect his employees and will likely be liable under the doctrine of respondeat superior. But Grokster doesn't have that sort of relationship with its users and that is precisely why the Ninth Circuit held them not liable for the infringements of their users.

A more apt analogy would be that everyone knows that 90% of "escort service" ads are essentially ads for prostitution, as are personals ads looking for "discreet, generous gentlemen." Clearly, such ads facilitate and materially contribute to prostitution and the newspaper owners know this. Yet the newspapers that run these ads aren't being hauled into court on pandering charges and if they were, I doubt the charges could be made to stick, unless the prosecutor could show actual knowledge as opposed to constructive knowledge.

Luckily, I think that most of the justices on the Supreme Court are more aware of the distinction than this author.

Let's just assume that in their hearts Grokster fully intends to profit from copyright infringement, they are the bad actors Hollywood says they are. The question is, on what basis do you prove it in court? How do you distinguish the bad actors from the "guy in the garage" who just thinks something is a cool new idea? That's the problem isn't it?

Not for the Washington Post's editorial board, which can, apparently, see into the hearts of bad actors (Not an iPod):

But Grokster and StreamCast are not simply technologies that can be used for good or ill; they are technologies that were designed and marketed precisely so as to facilitate theft. Both companies positioned themselves to inherit Napster's user base when the courts ordered that company to stop permitting illegal file-sharing. Both have promoted themselves based on the wide variety of materials illegally available. And both have frustrated copyright holders' efforts to police their use. A company that builds its entire business model around facilitating illegality should not be immune from liability because of the possibility of innocent use.

If Hollywood could prove this in court, then the case wouldn't be before the Supreme Court, most likely. And even if they could, what of the next Grokster that doesn't advertise at all? Isn't the end result that you have to ban the technology?

Drawing a clear distinction between such a product and an iPod would protect both innovation and intellectual property.

Well, yes, yes it would. Does the Post's editorial board have any such distinction in mind? Because lots and lots of smart people haven't been able to come up with one. One also notes that Hollywood thought the iPod was an evil product, back when it was called the Diamond Rio MP3 player. One man's innovation is another man's "Boston Strangler."

Of course, not all editorial boards are so clueless. Surprisingly, the LA Times which might be assumed to take a hard stance on Grokster has a balanced editorial (California's Civil War):

It's worth noting that the lower courts haven't legalized unauthorized copying of protected materials. They simply applied the Betamax test and distinguished Grokster from Napster, the ill-fated file-sharing service that allowed users to illegally copy music on its own servers.

What the entertainment industry wants is veto power over technology with the potential to be used illegally. That's not in society's best interest. If those creating the peer-to-peer networks could be held liable for illegal activity, where do we draw the line? Why not go after the manufacturers of operating systems, hard drives and CD burners that can also play a role in illegal activity?

Unlike the Washington Post or the New York Times, the LA Times notes what the case is not about, that is, it is not about legalizing direct infringement. Fancy that.