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Jay Currie

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6/27/2005

Grokster

Souter's opinion says explicitly that the Court would leave any review of Sony’s scope for another day. This means that new technology will not be illegal just because it is capable of being used for infringement. What makes the Internet file-sharing technology potentially illegal here, according to Souter, is evidence going beyond its basic characteristics or awareness of how it may be used, and revealing "statements or actions directed to promoting infringement."
scotus blog
I've not read the opinions in Grokster but it is an interesting idea - if you promote your sharing software as a means to share copyrighted material then you are infringing; however, if you build something like BitTorrents and are extremely careful not to say anything as to what it might be used for, the technology in itself, is not illegal. As Scotus points out, this leaves the ratio in Sony Corp. of America v. Universal City Studios intact.

Bram Cohen, the inventor of Bit Torrent, has been very carful indeed to avoid any mention of copyright infringment as a use for torrents. He has no advertising on the site where you can download Bit Torrent. I suspect that in light of the Supreme Court's decision today this is going to look really, really, smart.

Now, a lot of the reporting is going to protray this decision as a "win" for the entertainment industry...
The U.S. Supreme Court bolstered the entertainment industry's anti-piracy campaign, saying Grokster Ltd. and other Internet file-sharing networks may bear responsibility when users illegally download music and films.
bloomberg
However, were I advising a copyright holder all that I could say is that we now know what evidence we have to have to make a case for secondary liability. "Rip, Mix, Burn" is no longer a good ad jingle for Apple. But it leaves the underlying technology legal.

Establishing intent is one of the most difficult things to do at law. Particularily when you are dealing with people as smart as Bram Cohen.

Update: It's all in the footnotes as it so often is in Supreme Court opinions:
The other 3 Justices (Scalia, Souter, Thomas) take no position on this (on the grounds that it's not necessary to decide *this* case, where there is such evidence of inducement/encouragement. Though there is a footnote in which they seem to suggest that they're on the Breyer side of the line. Footnote 12 (thanks to Michael Froomkin for pointing this out to me):

"Of course, in the absence of other evidence of intent, a court would be unable to find contributory infringement liability merely based on a failure to take affirmative steps to prevent infringement, if the device otherwise was capable of substantial noninfringing uses. Such a holding would tread too close to the Sony safe harbor."
volokh

Update II: Over at SCOTUS there is an excellent discussion of Grokster. Go read it. I commented on one post:
Looking at the technology of Bit Torrents it is pretty clear that it is, in the nomenclature of arms control, "dual use".

However, Bram Cohen - the inventor of Bit Torrent - has been bright enough not to induce any infringing uses and appears not to profit from any such use.

The standard would appear to be "clear inducement" to infringe and that places a significant onus on a copyright holder.

What the Grokster decision does appear to do is provide a roadmap for people inventing P2P technologies. First, do not induce, second make an attempt, however lame, to install a user option filter which would spot copyright marked songs/movies and make them non-downloadable.

Follow that roadmap and you will have a good, if not bullet proof, defence to any charge of contributory infringement.