Sure enough, the flower-power people are stompin’ mad over the Grokster deal, calling it “thought crime” and the end of the world:
“Today the Supreme Court has unleashed a new era of legal uncertainty on America’s innovators,” said Fred von Lohmann, EFF’s senior intellectual property attorney. “The newly announced inducement theory of copyright liability will fuel a new generation of entertainment industry lawsuits against technology companies. Perhaps more important, the threat of legal costs may lead technology companies to modify their products to please Hollywood instead of consumers.”
The thing is, the consumer isn’t locked in to some death battle with Hollywood; as long as Hollywood has reasonable protections, they’ll release lots of programming in MPEG format, and if they don’t they won’t. So we all benefit from the balance struck by the court in their unanimous Grokster decision. Here’s the way Cardozo law professor Susan Crawford put it:
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.
And if you don’t think the whole purpose of Grokster was theft, I want some of what you’re smoking.
Here are a few relevant links:
* Wall St. Journal rountable
* Copyfight
* How Appealing
* SCOTUSblog, and here‘s their Grokster post.
* Ernest Miller’s blog, where you’ll find several posts:
I can’t stress enough that a unanimous Supreme Court issued a victory for the rule of law. The other parties in this case created systems that were made for the purpose of facilitating copyright infringment, the taking of music and movies. Taking from the people who put their sweat into making things we enjoy. The constitution protects this, It is in the constitution because they knew we needed this incentive to create something that we might all enjoy. This is a ruling that everyone who creates music, books are entitled to protection under the Constitution. When people create a product to help people take this content, they will be liable for it. All nine justices agree with this principle.
* Freedom to Tinker
The full text of the Supreme Court’s Grokster ruling (PDF, 55 pages).
No comment yet from Lessig, but Gillmor and Blankenhorn are miserable. Here’s Gillmor:
The Supreme Court has given the entertainment cartel and emerging broadband duopoly just what they wanted. You, and innovation, lost.
The high court said that Grokster and other file-sharing companies can be sued if their products are designed for copyright infringement and don’t have safeguards to protect copyrighted material.
And here’s Blankenhorn:
With this decision — a unanimous decision as opposed to the 6-3 Betamax ruling — I guarantee you the industry’s lawyers will try and turn this into open season on the Internet.
So it’s either the dawn of a new era of innovation, or the end of the world. Or maybe it’s just same-old, same-old.
The only thing I was worried about in the Grokster case was a stupid attempt to outlaw the underlying technology. I think the court was quite reasonable in saying that if you market a technology as a way to steal someone else’s property, you are liable for the theft. Crowbars and glass cutters are useful tools, but me selling them as a “burglary kit” should invite a jaundiced eye from the local PD
I am worried however about the decision in National Cable Telecommunications Assoc. v. Brand X Internet Services. I already suffer from my cable company’s concepts of how I should use the Internet. For example, because Cox doesn’t know how else to combat spam origination, it shuts off port 25 to anywhere but its own servers, meaning that I can’t use email services other than Cox (unless of course the email service is as smart as gmail!).
There are quite a few restrictions in place because broadband providers simply don’t know how to run a network (see my previous comment). How many more will spring up because they can eliminate the ability of competitive services to reach their subscribers?
I agree that was a troubling decision; I’d like to see the same rules applied to DSL and cable, with the option of using a real ISP for little more. The cable and DSL companies could do that today if they were smart enough.