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« What Wall Street Tells Us About Grokster | Main | Robot Renegade IP Maximalists »

June 28, 2005

Thou Shalt Not 'Ster

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Just as he did post-Eldred, Siva Vaidhyanathan has written an accessible reaction piece for Salon that will help people who don't read Supreme Court opinions understand what the Court ruled and why. Late in the day yesterday, William Patry -- reader of countless Supreme Court opinions -- expressed his sharp disappointment in the ruling (hyperlink, mine):

What has changed for me is that I am always impressed by the Court's grasp of issues at oral argument, but am disappointed in the quality of the resulting decision. Grokster is the most disappointing of all. Like Lotus v. Borland, where the Court split 4-4 after a week (lazy!), Grokster raises to me serious issues about the ability of the Court to deal with hard copyright technnology issues. I had predicted after Grokster there were not 5 votes for either side and that proved true. But I didn't expect a phony 9-0 unanimous opinion, phony in the sense of tossing something out as if the Court had really done something. In my view they didn't.

Here's how Siva expresses it:

Overall, Monday's Grokster ruling is a middle-ground decision about a territory that has no middle ground. Souter and the court have issued a Solomon-like decision that will do no good for the plaintiffs, do no harm to infringers -- and could have profoundly negative effects on future innovators of technology.


Souter is convinced he saved the Sony standard and technological innovation in general by focusing on acts that "induce" people to infringe. "The inducement rule, instead, premises liability on purposeful, culpable expression and conduct," he wrote. To demonstrate that Grokster and StreamCast induced infringement, Souter considered how the product was conceived and distributed, how it was advertised, and even what inspired Grokster's name.

But it's not at all clear that the next big case won't completely undermine the Sony decision and retard innovation, investment and risk-taking. The next company to be sued likely will not make the mistake of marketing its products as "the next Napster." But will courts stretch the "inducement standard" established by this case to include clever marketing? And what about the other devices that let us copy stuff?

On my way home from work the other day, I saw a billboard advertisement for what I believe was a Bose iPod SoundDock. I may be imagining things (I can't find the image online), but I believe it had tiny pink hearts, musical notes, and pirate skull and crossbones symbols like the ones on this shirt emerging from the speaker. It was not, however, called "SoundDockster."

No one is likely to sue Bose, 'ster or no 'ster, pink skull and cross crossbones or no pink skull and cross bones. The quesion is, why? In the wake of this ruling, what will distinguish the "good" inducers (like Google) from the "bad" inducers, especially when they're still working in the garage and haven't yet become the next "'ster" or "pod"? And who will the courts listen to -- the scruffy guy with the rogue open-source software program, or the corporate lawyers peeved that he refuses to hobble it?

As Mike Godwin points out in his must-read Reason column on the decision, the ruling "saved" Sony but blurred its bright line:

By opening up the question of whether the designer or manufacturer or distributor of a new technology had the "intent" to "induce" infringement—terms that are not yet fully defined in this context—the Court made sure that company e-mails, advertising, and any other evidence may now be discovered in a trial proceeding, even if the technology itself has the potential substantial lawful use.

And of course, this is where we get into the "thought-crime" aspect Cory presses in his reaction piece for Popular Science. "You, sir, knew your software could induce people to infringe copyright. As exhibit A clearly shows, you knew it on December 31, 2006, when you sent this email to your colleague describing..."


These are only a few of the roads of inquiry the ruling opens up, as you can readily see with a quick scan of Ernie's latest posts @ Importance Of.... The dust won't settle for some time -- perhaps not until the next 'ster/pod reaches the Supremes.

Update: John Palfrey expresses simply and elegantly the central point of this over-long post:

The hardest, unresolved question after Grokster is what the effect of this ruling will be on the entrepreneur in her garage and on the venture capitalist seeking to put investors’ money to work. In threading the needle, the Court has made the copyright regime more subtle and less clear. The Sony rule was easy for the unrepresented technologist to understand: can somebody use my technology for some lawful purpose? If the answer is yes, then the business model is presumptively lawful.

The Grokster line, announced yesterday, is much harder to work out – and there’s the rub. The cost of the Grokster opinion lies in its lawyerly precision. The problem is that the entrepreneur will have to work harder to determine what she has to do to make sure her business is able to attract the capital needed to get it to market.

The entrepreneur, and her prospective investor, now have to ask some new questions. Does her business model effectively induce others to violate copyright? What kinds of advertisements would get her in trouble? What are the “reasonable” steps that she needs to take to stop people from using her technology for infringing uses? With the help of a good – and likely expensive – lawyer, these questions should be able to be answered.

Comments (3) + TrackBacks (0) | Category: Big Thoughts


1. Copyrighter on June 29, 2005 2:31 PM writes...

What an overwrought and overarchitected analysis that really breaks down to this: if you're going to make a technology that will be used mainly for illegal purposes and you know that it will mainly be used for that purpose and it in fact is mainly used for illegal purposes, then you're liable.

What is so hard for you people to understand here? Creating P2P technology to enable theft/infringement of copyright materials is illegal. Get used to it.

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2. Donna on July 1, 2005 12:19 AM writes...

Well, you've certainly got a gift for simplifying things. With your help, the Supreme Court could have issued an opinion on this issue of 2-3 paragraphs, max.

Seriously, though -- why the hostility? I don't think there's any need for it.

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3. Peter Pizzi on July 11, 2005 1:41 PM writes...

When the Court faulted Grokster for its "digital codes" (see below) was it referring to metatags?

“Grokster launched its own OpenNap system called Swaptor and inserted digital codes into its Web site so that computer users using Web search engines to look for ‘Napster’ or ‘[f]ree filesharing’ would be directed to the Grokster Web site, where they could download the Grokster software.”

Just wanted to see if I read it right.

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