The decision against Grokster (originally blogged here) is likely to be discussed for quite some time. The original consensus that technology that allowed copyright infringing activity was legal but promoting or inducing copyright infringing activity is illegal has been maintained...although people have vastly differing opinions on what would constitute "inducing" and how clear the court has been in defining the term.
FindLaw: FindLaw has a piece up on the topic, and as usual it is clear and fairly comprehensive. It argues that the decision rescues technology by allowing innovation as long as copyright infringing activity is not promoted, pointing out that "the fundamental characteristics of information technology facilitate copyright infringement".
As important as what the Court said, is what the Court did not say.The Court did not reinterpret Sony to apply only where the principal use was legal. This new test was what the studios most dearly wanted.
Also, the Court did not hold that a company could be liable because the product could have been designed differently to bar copyright infringement - as for instance, the iPod could have been, by being designed to bar MP3s.
The Court did note that the design of the software was relevant to a contributory infringement claim, but only when there is evidence of inducement.
The record labels apparently wanted the decision to state that if the primary use of a technology was copyright infringing then the technology should be illegal...which would leave Apple in trouble since iPod users have downloaded an average of 25 songs per iPod -- far short of the total capacity, which could be filled with pirated tracks.
No wonder, then, that the risk of chilling invention was very much on the mind of the Supreme Court Justices as they heard oral argument in the MGM v. Grokster case in March. Justice Breyer asked the studios' lawyer: "Are you sure that you could recommend to the iPod inventor that he could go ahead and have an iPod, or, for that matter, Gutenberg, the press?"Imagine the scene in the Apple boardroom if the iPod were being rolled out today, and the studios had had their way in Grokster:
"Mr. Jobs, are you confident that this device you call an iPod will be used principally for legal songs? I might remind you, Mr. Jobs, that your 60 MB model holds 15,000 songs, costing $14,850 if purchased through iTunes. Do you expect Americans to hold out against the temptation to download illegally to the tune of thousands of dollars?"
And the music industry would go after Apple, it has a habit of trying to kill the goose laying the golden eggs...
LA Weekly: Compares Grokster with a baseball bat...but tends to come down with the view that the decision won't stifle innovation, claiming BitTorrent is immune...
Internet News: This article feels the inducement clause is too vague, and will have a negative impact on innovation. "This won't chill the innovator. But it chills the capital behind the innovator. If a technology company came to us with promising commercial uses for their product, that's a less interesting investment today, and certainly less interesting if the Supreme Court had protected the technology, despite the behavior of their users...You're not going to put your capital at risk if there's a high likelihood of being sued and losing." The article also points out that Google's lawyers will be studying the decision very carefully to determine whether selling advertising next to infringing material constitutes "inducement"... I don't think it does, but obviously Google would want to be very sure. Google is already being sued for copyright infringement...
In this interview with Larry Lessig, he feels that the decison will result in "10 years of chilled innovation".
http://www.businessweek.com/technology/content/jun2005/tc20050629_2928_tc057.htm
You might this article an intersting one too: "Why Analog Property Rights are wrong" - who puts an interesting economic argument.
http://www.bubblegeneration.com/2005/07/why-analog-property-rights-are-wrong.cfm
Posted by: Vergil Iliescu | July 10, 2005 at 05:19 AM
Incredible voice, incredible smile - she sings for the joy of doing and sharing her gift! I'm in Japan too (18 years and counting) and Dre-com, along with Sazan are two joyful music making groups that make up for all the junk here ... and there ... maybe ?
Posted by: Uggs | August 17, 2011 at 12:33 AM