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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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