I'm not even going to try to provide a comprehensive list of links for the Grokster decision this morning, only some I thought of particular interest. I will continue to update this post through the day, as I come across more links.
Derek Slater is on a roll over at EFF's DeepLinks:
- What is "Inducement"?
- Unavoidable Inducement?
However, in some ways, the decision may make it difficult for legitimate businesses to avoid inducement.
- Clarifying Inducement: How Is Patent Law Relevant?
A straightforward transplant of the patent inducement doctrine might have provided technologists with some insight into what it will mean for them in the copyright context. Unfortunately, the Court's decision muddies the import of patent caselaw.
- Clarifying Inducement: What's the Remedy?
If past misconduct can be used to prove that present actions also amount to inducement, the potential harm to innovators would be substantial. Finding that an action from long ago amounts to inducement could open the door to claims about all subsequent activities.
I believe that the Supreme Court
has effectively pre-empted Congressional action in this area for some time. C|Net News
gets reaction to the decision from Congress that concurs: Congress Applauds File-Sharing Ruling
. The two top proponents of the INDUCE Act in the Senate
had this to say:
Patrick Leahy, the top Democrat on the Senate Judiciary Committee, said through a spokeswoman that he "is going to let the courts continue their role in reviewing the next phase of this case."
Sen. Orrin Hatch, the Utah Republican who heads an intellectual property subcommittee, said: "Prudence and respect for the role of the courts suggest Congress wait until it becomes clear how today's decision will play out in the lower courts before there is a rush to legislate."
Speaking of C|Net
, their Download.com
website was still hosting Grokster and StreamCast clients as of this morning. I guess they don't think the ruling could apply to them, or that they would be sued. If I were them, I might think again. Although Grokster and StreamCast were not ruled illegal, if they are, I'm not sure that C|Net can avoid liability.
C|Net executive editor Charles Cooper wants EFF to come out and say, "just once", that "Grokster's business model is predicated on breaking the law" (Theft by Any Other Name). Hey, Cooper, what do you think about a company that makes money (some of the most popular downloads on Download.com are P2P programs) from companies whose "business model is predicated on breaking the law"? Why don't you say something about that?
Tim Wu thinks the Court has made a clear distinction between illicit Grokster-type filesharing and licit filesharing.
- The Grokster Safe Harbor?
- Making a deal with the recording industry (iTunes)
- Encryption of content offered (also iTunes)
- A network optimized to some other explicit purposes (Freenet, privacy and anonymity, or even email -- personal communications)
- Phone home technologies -- software that is montored centrally, see Randy's paper.
- Grokster's Future
The important question is this: how does the Grokster decision affect the future of content distribution? In my view the decision will actually settle matters more than people think. To use a Lessig term, Grokster is zoning filesharing -- as between highly illegal, highly illegitimate operations on the one hand (like WASTE and some Bittorent clients), and highly respectable, legitimate operations on the other (iTunes and the new Napster).
I disagree with Tim's analysis here. The safe harbor doesn't seem particularly safe the way he has described it. You could license, but isn't the whole point of Sony
that you don't
have to license? You could use encryption, though what that means for filesharing legitimate files is unknown. And, isn't the whole point of Sony
that you don't
have to incorporate particular copy controls? Optimization is in the eye of the beholder. How long before you can file share with Skype (a pre-eminent P2P personal communications technology)?
As a commentor on Tim's second post notes, I'm not sure why Tim thinks that WASTE necessarily runs afoul of this ruling. It is basically a handy, secure P2P application for small groups, with plenty of legitimate uses.
Randy Picker wonders if, under Tim's reading, iPods can be distinguished from iTunes: File-Sharing v. File-Distribution.
Mike Godwin has a column in Reason: Don't Stop Grokkin'.
Siva Vaidhyanathan has a column in Salon (watch an ad for access): Supreme Court's Unsound Decision.
This is why courts and legislatures should be very careful when regulating technological innovation and copyright: Broad rules and legal uncertainty can put a chill on, or even wipe out, really useful and important developments.
As Jim instructed Huckleberry Finn when Huck claimed Solomon was the wisest man who ever lived: "De 'spute warn't 'bout a half a chile, de 'spute was 'bout a whole chile; en de man dat think he kin settle a 'spute 'bout a whole chile wid a half a chile doan' know enough to come in out'n de rain."
You can comment on Siva's column on his blog, Sivacracy
, here: My Grokster Article in Salon.com
Why should I bother doing a roundup of traditional news sources when Frank Field has done such a great job on FurdLog?: Grokster Roundup.
Prof. Mark Schultz of the Southern Illinois School of Law is guest-blogging on Eric Goldman's Technology & Marketing Law Blog. He looks deeply at the issues surrounding BitTorrent under Grokster: What Happens to BitTorrent After Grokster?. A significant omission, however, is that he doesn't address how BitTorrent Search and trackerless BitTorrent might change the equation. I could see BitTorrent search being considered enough evidence of intent so that trackerless BitTorrent becomes evidence of bad design under this decision.
Mark Schultz responds to my query and has addressed the issues of BitTorrent Search and Trackerless BitTorrent: More on BitTorrent and Grokster. Many thanks.
Prof. Michael Madison thinks the decision could have been better, but isn't too bad: Grokster Redux.
That said, an Im a genuine innovator standard is much easier for mainstream technology innovators to live with than it is for cutting edge folk or iconoclasts. My relatively sanguine disposition comes from the observation that the same pattern is observed in the fair use cases, and while thats hardly a perfectly happy story in itself, judges handle innovation and evolution there better than we often give them credit for.
Prof. Susan Crawford has two posts on the question of balance in the decision:
- A Balanced View
Today's Grokster opinion is a victory for content AND for technology. I was afraid that Sony would be undermined -- and it wasn't. The content guys were afraid that they wouldn't be able to go after bad guys -- and they've been given ammunition. What we've got is an opinion that is balanced and middle-of-the-road. It leaves Sony's "substantial noninfringing use" standard alone (yes, the concurring Justices snipe back and forth about what that standard means, but that doesn't matter), it doesn't adopt any formless Aimster balancing test, and it says strongly that you can't impute intent to technology. A good day for innovation. And a good day for Congressional staff, who won't have to deal with some request for Induce legislation -- we're done.
- Footnote 12
I read the decision as saying that IF there is evidence of advertising AND other marketing and promotional indicia of intent, THEN failure to filter might be relevant. But failure to filter on its own (as Footnote 12 suggests) would never be enough.
Now, of course, it's not hard to do discovery and find evidence of intent. So this gives the content industry substantial ammunition. And that's why this is a balanced opinion that doesn't completely please either side.
, director of the Center for the Study of Digital Property at the Progress & Freedom Foundation
, has a column on Tech Central Station
: Grokster at Last!
As a first resort, it is clearly better to deal with the P2P purveyors as infringement-dependent businesses rather than infringement-enabling technologies, using the standards of evidence about the proof of evil intent that the Court put forth. The exact dimension of the Sony doctrine can wait. And, given reasonable progress in the development of technological means of protection, the issue might well wait forever, eventually joining the graveyard of unsettled issues on Moot Point.
"Follow the money" has become a mantra. Well, Mark Cuban
, who backed the Grokster
lawsuit, follows the money and finds that no one cares: Kaboom !
In the business world, one way to evaluate the financial importance of news is by watching to see how Wall Street responds to it. If there is the slightest glimmer of hope in a news announcement, at least one person is going to think it will have some level of impact and make a bet on the stock and/or industry impacted.
There wasnt a Kaboom, there wasnt a whisper in the market. Not one buyer or seller of stocks gave a damn. Warner Music Group. probably the only public company that is a pure play proxy for the music business traded almost exactly the same number of shares as it does every day. The stock was down a nickel.
He also looks at the practical business effects.
Ed Felten see BitTorrent as the next big test case, but thinks they'll survive: BitTorrent: The Next Main Event. I'm still concerned that the search engine and commercialization of BitTorrent may undermine the argument. We will have to see. Bram Cohen must remain purer than Caesar's wife.
bIPlog's Aaron Perzanowski claims the Court's test isn't really "active inducement": It's Not Active Inducement, Stupid
Does anyone else consider it odd that Grokster's homepage, as of Tuesday afternoon, still touts the Ninth Circuit's decision?:
via Mossback Culture
THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT IN THE CASE OF MGM vs GROKSTER AFFIRMED THE DISTRICT COURT'S PREVIOUS RULING.
Today the United States Court of Appeals for the Ninth Circuit affirmed the previous District Court ruling denying the motion picture and recording industries request to shut Grokster down.
John Palfrey gets it right, I think: The Entrepreneur in a Post-Grokster World.
So, its back to the courts again. The Supreme Courts decision places the responsibility to uphold Americas culture of entrepreneurship and innovation squarely in the hands of the lower courts to determine what the ultimate effect of its thread-the-needle ruling will be.
Its the next few rulings, reading the tea leaves of the opinions handed down yesterday, that matters. If the next tests of the Grokster ruling turn out in favor of the entrepreneur, then the chilling effect of the Grokster opinion on innovation will hopefully be negligible.
Nice summary from David Post
on the Volokh Conspiracy
: Grokster Decision, Second Thoughts