TCS Daily

The File Sharer's Guide to the Universe

By Jay Currie - July 6, 2005 12:00 AM

The Supreme Court decision in Grokster is being spun as a victory for copyright holders and, more specifically, the music and movie business. More sophisticated analysis recognizes this is not an outright win. As ever, the devil is in the details and the detail which I suspect is causing a bit of consternation in the blonde boardrooms of the entertainment biz is footnote 12:

        "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 non-infringing uses. Such a holding would tread 
        too close to the Sony safe harbor."

Combined with Justice Souter's opinion for the Court which imports a requirement of "intent" into any litigation alleging contributory infringement, while this was not a good day for Grokster, it was hardly the end of file sharing as we know it.

Souter wrote that for Internet file sharing technology to be out of bounds, there must be evidence that its inventors had to be aware of its potentially infringing uses and must make "statements or actions directed at promoting infringement." So that puts paid to Apple's "Rip, Mix, Burn" ads. However, it is hardly likely to stop innovation. Instead, the Grokster decision sets out a roadmap for technologists who want to build P2P software.

First, do not induce copyright infringement. No ads, no nods, no winks. Second, make sure there is a non-infringing use for the software. With P2P this can be anything from users sharing their photos online to promoting their garage band or letting the world download their latest software for beta testing. Third make an attempt, however lame, to install a user-option filter which would spot copyright marked songs/movies and make them non-downloadable. You may even ship the P2P software with the "anti-infringing" filter turned on and leave it up to the user to make their own decision. Fourth, make sure that you put a big, honkin' disclaimer on your site -- "The software on this site is to be used for sharing files which you own. It is illegal to share copyright material. If you don't know, don't share."

Follow that roadmap and a P2P technologist will have a good, if not bulletproof, defense to an allegation of contributory infringement.

A couple of months ago Brad Burnham, a venture capitalist with Union Square Ventures in Manhattan, said in Wired Magazine: "All hell's about to break loose." The reason? "A new technology, BitTorrent is emerging and it does not require the wires or airwaves that the cable and network giants have spent billions constructing and buying. And it pounds the final nail into the coffin of must-see, appointment television. In short, BitTorrent transforms the Internet into the world's largest TiVo."

Grokster does not do a thing about BitTorrent and its related technologies. Bram Cohen, the inventor of Bit Torrent seems to have read the minds of the Supreme Court a few years ago. If you promote your sharing software as a means to share copyrighted material then you are infringing; however, if you build something like BitTorrent and are extremely careful not to say anything as to what it might be used for, the technology in itself, is not illegal.

Bram Cohen, the inventor of Bit Torrent, has been very careful indeed to avoid any mention of copyright infringement as a use for torrents. He has no advertising on the site where you can download Bit Torrent. In light of the Supreme Court's decision, Cohen today is looking really, really, smart.

Establishing intent is one of the most difficult things to do in law, particularly when you are dealing with people as savvy as Bram Cohen. Looking at the technology of Bit Torrent, it is pretty clear that it is, in the nomenclature of arms control, "dual use."

However, where the legal standard is a "clear inducement" to infringe, there is a significant onus on a copyright holder and one which will be tough to meet.

Grokster was likely the last hurrah for the copyright holder's enforcement based strategy. While it certainly gives them the tools to shut down P2P services based in America that induce copyright infringement, it also gives the technologists the chart to a safe harbor -- a chart which will allow them to kick the decision to infringe or not to infringe right back to the user.

The unwillingness of the Supreme Court to adopt the position that the mere possibility of infringing use makes the technology prima facie liable for contributory infringement means that the idea of collective licensing will gain some traction.

Technologies like Bit Torrent combined with broadband means it is a snap to find and download, largely anonymously, whole albums, television episodes and movies. If the copyright holders cannot shut down the inventors of these technologies, and Grokster seems to mean they can't, another model for paying the creators is going to have to be found. Collective licensing or a media levy would seem to be it.

Jay Currie is a Vancouver Island writer whose writing can be found here.


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