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Burning For You!

Well, the Supreme Court ruled on the copyright fight of the decade, MGM v. Grokster. If you read the headlines, you’d think that P2P (peer-to-peer) file sharing (the free download services, not the downloads you pay for) was killed till it was dead. It wasn’t.

All of the big P2P sites are still up, and will remain up, most probably for a while. If you already have a P2P program and are using it, none of what the Supreme Court said should affect you. The P2P networks are decentralized, and nobody’s been able to figure out how to shut them down. So even if, say, Grokster gets sued into oblivion (which looks likely), the networks of Grokster users will continue. They just won’t grow, since the company won’t be around anymore to distribute the software to new users.

So, this decision doesn’t directly affect the estimated 100,000,000 people (!!!) who already have P2P software on their computers; the entertainment industry’s cries of victory are the equivalent of strutting around on an aircraft carrier in a jumpsuit in front of a Mission Accomplished banner. But remember, using these services is legally risky, so if you are going to use them, hey, it’s your checkbook. I’d suggest staying away from current movies, and for crying out loud, clear out your share file regularly, if not after every online session. If you’re using a P2P program and don’t know what your share file is, you’re a sitting duck for an expensive lawsuit, so figure it out—right now.

What the Supreme Court did on Monday was overlay a new rule into the mix and send the case back down to the trial court to apply the new rule. Before Monday, the rule was that if you made a device that could be used by others to infringe, but if your thing could also be used for non-infringing purposes, you were OK. That’s why VCRs, disc burners, and photocopy machines are legal. On Monday, the court ruled that if you create a device that is used for infringement, and induce others to infringe with it, you can be found liable of infringement, too. The inducement part is new. And troublesome.

The court found that even though the P2P programs had plenty of legal applications (Jeff Tweedy of Wilco was mentioned in the opinion as having testified that he approved of his fans trading his music on P2P networks), that Grokster and Morpheus (the only defendants in this case) had gone to great lengths to promote their software as conduits for “illegal” downloads of copyrighted music and had actively encouraged users to download copyrighted songs. In other words, they were naughty and deserved to be spanked. And they will be.

The court emphasized it wasn’t interested in outlawing P2P, only in finding liability in those P2P companies that openly flaunt the law. Grokster and Morpheus would have been fine if only they had used their gifts for good, and not eeee-ville. Which is a pretty weird state of affairs.

Soon I will launch my own P2P program, Rappster. It’ll run just like Grokster, except I’ll advertise it only as a great place for you to post and trade home-made recordings of old Shaker hymns and Portuguese whaling songs, nudge nudge, wink wink! If 2,000,000 kids happen to download my program to trade Coldplay and Gwen Stefani, well, don’t blame me, babe!

It should be noted that this case directly involved only the companies that distribute the Morpheus and Grokster software. Other companies like KaZaa, Bearshare, eDonkey, and Limewire will be affected by this ruling eventually in whatever litigation the recording industries bring against them.

The immediate effect of the ruling will be a tsunami of renewed litigation brought by the entertainment industry against all of the distributors of P2P software, and then on to other tech companies that make anything over which copyrighted information can be transmitted, stored or copied. If the industry thinks it can make a case that a company has “induced” infringements, it’s gonna sue! The new focus in these lawsuits will be how and why the tech products were conceived, plus business and marketing plans, and promotional campaigns. Big business is going to beat up small business.

And deciding exactly what “inducement” means will keep lawyers and courts busy for many years to come. Remember the advertising campaign last year for one of the big computer companies: “Download . . . Rip . . . Burn . . . ”? Hey now! How about the simple act of placing blank CDs for sale at the counters of record stores? Oops! Across Manhattan right now, hundreds of shiny young lawyers at mondo-law firms are being informed that they won’t be spending their weekends at the Hamptons this summer after all. There is a war looming. And the little tech start-up companies, the guys who drive innovation in this country, have suddenly found themselves in the shadow of a smoldering volcano that spews complaints, injunctions and subpoenas.

On the bright side, the court’s ruling, by Justice David Souter, did include a totally gratuitous reference to Modest Mouse. Go figure!

—Paul Rapp


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