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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @
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« The Importance of ... Law and IT: MGM v. Grokster | Main | The Day After: Grokster Roundup »

June 28, 2005

Grokster and Open Source: Will Open Source Force the Court to Confront Sony?

Posted by Ernest Miller

What the heck does the Grokster decision mean for open source?

I suspect that we are likely to find out.

Up to now Hollywood has been satisfied in going after the commercial purveyors of P2P filesharing software. Undoubtedly, following the Grokster decision, they will continue to do so. However, that will not halt the use of P2P programs.

As the commercial systems are shut down, it is likely that users will migrate to open source P2P projects. Indeed, a switch to various open source programs, such as BitTorrent, is already well under way. If Hollywood desires to continue to stem the tide by taking action against certain programs, they will have no choice but to go after the most popular open source projects.

Vicarious liability would not seem to be much of an issue for most open source programs. They don't directly profit from (and I doubt a court would recognize reputational benefits for this purpose) illicit filesharing and I'm unaware of any that has the right and ability to control use. Standard contributory infringement would also be relatively difficult to prove on a number of levels, assuming the device met the Sony test.

But active inducement changes things, especially as the Court was rather unclear on how it was to be applied. The problem for many open source technologies that would meet the Sony test is that they receive contributions of code from a wide variety of sources. The most well-organized projects have a vetting process so that they do not incorporate copyrighted or patented code. However, how are they to vet for intention?

When you've got a large number of people working on a filesharing project, it is likely that one of them will say things that would be evidence of inducement. Furthermore, the Court spent a great deal of time emphasizing Grokster's lineage from the original bad actor Napster. That was plenty of evidence of ill intent for the Supreme Court. How might that logic be applied to the numerous progeny of Napster in the open source world?

I really don't know. There are a number of ways that a court could potentially handle it and it would be very fact-dependent, I think.

One possibility I do see, however, is that an open source project may ultimately force the Court to confront Sony directly.

In Grokster, the Court "kicked the Sony can down the road". They didn't address what it really meant and came up with an alternative theory of liability, active inducement. Active inducement seems well-suited to bringing down many commercial projects, but it could have difficulty with open source.

Although an active inducement case would be relatively easy to bring against an open source P2P project, I believe, I could also see a Court dismissing such a claim for a variety of reasons. Such a decision would be very fact-dependent, but having dismissed active inducement, the only chance to shut down a particular project would be to find that the program failed the Sony test.

Such a case would then force the Court to make a decision about the limits of Sony.

Comments (6) + TrackBacks (0) | Category: Copyright | File Sharing | Open Source


COMMENTS

1. Simon Pole on June 29, 2005 03:33 PM writes...

I think this threat could be mitigated by having code-contributers sign off like they now do on the Linux kernel.

Developers on the kernel have to sign a statement verifying they're not contributing copyrighted code.

The same could be done for developers on open source p2p apps.

A developer could simply sign a statement saying he or she in no way advocates or wishes to induce anyone to infringe copyrighted material, and disavows any past statements that could be interpreted in this way.

Permalink to Comment

2. Ernest Miller on June 29, 2005 03:53 PM writes...

Possibly, but you'd have to prepared to boot people who violate that and the providers should really be careful about what they say subsequently. Again, I think that some such effort will be successful and that, therefore, it will be a non-commercial P2P program that will force the courts to really face the Sony test.

Permalink to Comment

3. Susheel Daswani on June 29, 2005 04:20 PM writes...

I don't think a court would find an open source p2p project liable under inducement. The open sourcers would have to keep the discussion technical, but since they are likely technically focused that won't be too hard. Also, even if some developers made statements indicative of inducement, the court may distinguish an open source project team from a commercial venture team.

I further contend that the open source team could establish a non-profit to pay the developers fair market rates. Any excess donations could be given to the likes of the EFF :). I wouldn't be surprised if this course is adopted by LimeWire.

My feeling is that the court was disgusted with the overt profiteering of the MGM defendants. Given a well behaved, technically focused open source effort, I don't think inducement liability would be found, and the technology would likely muster a Sony defense.

One interesting question: Could the open source effort only distribute code, or could they also distribute binaries? It may matter.

Permalink to Comment

4. Simon Pole on June 29, 2005 05:41 PM writes...

One problem with suing an open source project, is finding someone to take to court.

An open source p2p app (which are not overly complicated to being with -- 11 lines of code can do the trick) could be created by a team on the internet whose identities might never be revealed to each other or to the world at large.

For-profit, proprietary software makers seem to be the losers here -- because they provide targets for litigation.

Open source p2p apps will just flow around the obstacles.

Permalink to Comment

5. Steve on June 29, 2005 05:59 PM writes...

In looking at the development process you're asking about the decision's significance in an area where it really doesn't apply. It's about intent in distribution and promotion, not in development.

The intentions of individual developers in a collective project are not likely to be relevant under a strict interpretation of the decision. Even a sole developer would not be liable under this decision (though other law might apply), even if he intended for the application to be used for infringement.

It's actually a narrow holding:

"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."

The "device" here would be the working application as a whole, not individual contributions. And the acts necessary for liability under this decision would be "distribut[ing] a device with the object of promoting" or "affirmative steps taken to foster infringement" - not merely creating it.

So A could write open source software "X" with any intent and not be liable. But B could be liable for for distributing X with the message "get copies of popular music with this!", while C could distribute it with the message "Use this only for legal purposes" and not be liable.

Permalink to Comment

6. Ernest Miller on June 29, 2005 06:52 PM writes...

You could interpret it that narrowly, but that doesn't mean a court couldn't interpret it more broadly. If you create executables and upload them to Sourceforge.net, so that they are available for download, a judge could call that distribution. Such an inquiry would be fact-specific, but I think it is a mistake to say that this decision absolves open source of liability.

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