Thursday, June 30, 2005

A whole lotta jurisprudence going on

I've wanted to write this post all week, and since I leave for Florida tonight, I better get cracking.

On Monday, the Supreme Court handed down its decision in MGM v. Grokster, finding unanimously for the movie and record industries and against P2P companies Grokster and StreamCast.

Many in cyberspace view this as a bad idea, most notably Wired, SlashDot and the Electronic Frontier Foundation. I feel that many are doing so unfairly without even having read the opinions. I'm sure you can guess who around here has. Well, after having done so, I hope now to explain the Court's ruling a bit in order to demonstrate that it is not, I repeat not, the end of the world.

First, it's important to keep in mind that the Court understands the facts of the case fully. They grok P2P networks and their decentralized nature and how Grokster and StreamCast substantially differ from Napster. If you don't believe me, go read the first few pages of the majority opinion. That's right: Justice Souter took eight pages just to fully lay out the facts of the case.

Second, one should know that the Court recognized a threat to technological innovation and considered this while making their judgement. Their concern for progress can be easily seen during oral arguments. For example, Justice Breyer asked petitioner, "Are you sure, if you were the counsel to the creator of the VCR, that you could recommend, given the use, copying movies, that we should ever have a VCR? 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? I mean, you see the problem."

Most of all, though, it's important to recognize that this case wasn't about peer-to-peer networks. Justice Ginsberg made that clear in her concurring opinion, "Further, the District Court and the Court of Appeals did not sharply distinguish between uses of Grokster's and StreamCast's software products (which this case is about) and uses of peer-to-peer technology generally (which this case is not about)."

Grokster isn't even about Sony, the so-called Betamax case that has the been the standard for this sort of case for the last 20 years. As Justice said, "When measured against Sony's underlying evidence and analysis, the evidence now before us shows that Grokster passes Sony's test that is, whether the company's product is capable of substantial or commercially significant noninfringing uses."

At this point, you may well be wondering what this case is about and what Grokster and StreamCast did for which the Court found them at fault. The answer, in a word, is inducement. Merriam-Webster's Dictionary of Law defines inducement as "A significant offer or act that promises or encourages."

Basically, the Court found them at fault for encouraging copyright infringement. The evidence that led them to this conclusion was not the fact that Grokster and StreamCast merely provided P2P software. It wasn't even based solely on the fact that they did nothing to stop copyright infringement. A good deal of the majority opinion focuses on their encouragement of infringement through advertising and software features. For example, one feature listed a top ten list of downloaded songs, which were inevitably copyrighted. Both companies tried to market their software as the replacement for Napster.

The lesson learned here and the precedent set isn't that creating technology capable of illegal purposes is wrong. That was decided back in Sony, and the Court showed no interest in revisiting it presently. The lesson set here is that encouraging illegal actions through marketing and other means is wrong. Do any among us reasonably disagree with that assertion? Really, this is hardly even a precedent, as it's been already accepted in patent law.

Just don't encourage others to break the law, and you should be able to invent away in Sony's safe harbor. Because of the Court's decision in Grokster, BitTorrent and its creator, Bram Cohen, seem safe. Not only does it have substantial non-infringing uses, but it does not through features or marketing induce copyright infringement. As Mr. Cohen says, "To me, it's all bits."

Since I'll be gone for almost a week, I should probably share this now, before any of the Supreme Court justices announce their retirement — if anyone even does, that is. There's a post on the blog of the American Constitutional Society explaining how A right turn on the high court could lie ahead, as many important decisions are only 5-4. The recent battle in the senate over a couple of Bush's judicial nominees might have seemed trivial, but the selection and confirmation of the next Supreme Court justice may truly change the Court and therefore American constitutional jurisprudence as we know it.

In happier news, Spain just approved homosexual marriage, and a similar bill is headed to the Canadian sentate where it is expected to pass easily. The times, they are a-changing, and it warms my heart to know that that means equal rights for some people around the globe. I look forward to the day when all Americans are assured the right to marriage.

Also in happy news, I have discovered my Jedi name.

Cast off your old name!

Your Jedi name is KARJO COLEB!

Find your Jedi Name!

And finally, your moment of Zen: the Interstate Commerce Blues.


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