In case you haven’t heard or read, the Supreme Court this week ruled that firms like Grokster are criminally liable for providing software for downloading and sharing copyrighted media, like music.
Every report I’ve read, from the Wall Street Journal to the Washington Post, called it a landmark decision. Each report also was skeptical as to whether the decision would hamper further illicit online infringing.
I personally agree with the Supreme Court decision. Given current copyright law, their unanimous decision makes obvious sense. I guess it sort of is a landmark decision.
I love bittorrent.
The key… and the pain
The key aspect of the ruling, from where I sit, is the intent of the software distributor. If your software incidentally allows copyright infringement, you’re protected. If the intent of the software, or if the principal use of the software, is for infringement, you’re liable.
Which sucks for things like BitTorrent. BitTorrent is an amazing piece of software, designed to facilitate distribution of legitimate software, speeding the channel. All it’s going to take now is for the preponderance of users to begin using the software for infringement purposes, and suddenly the software developer is liable for the actions of his users.
Hideous decision, IMHO. The previous doctrine of “substantial non-infringing use” made a lot more sense to me. Now if I write code that allows infringement, and most of my users use it for infringement, I’m on the hook even if I didn’t design it for that purpose. It’s a muzzle on software development. If your software has substantial non-infringing use, you should not be on the hook for the actions of your users.
But that’s no longer the law. I suspect this will do nothing but drive all significant development of applications which allow file-sharing to offshore developers.
—
Matthew P. Barnson
Contradicting yourself
Matt, hombre, I think you’re contradicting yourself. You wrote that if the software “incidentally allows copyright infringement, you’re protected” but then wrote “Now if I write code that allows infringement, and most of my users use it for infringement, I’m on the hook even if I didn’t design it for that purpose.”
???
I’m totally with you on intent. Obviously, the best thing to do if you’re the next Grokster is to have a one-page website that states:
“Hi! We’re the new Grokster. Our software may look like the perfect tool for sharing copywritten digital media, but actually our software is for sharing and exchanging government documents and recipes, which are NOT protected by copyright. Again, government documents and recipes only. This was the intent of the original software authors. As you can see, we’ve listed on this site such files as ‘The Constitution’ and ‘Hump Ditty Triple Fudge Smacks’. Thanks for using.”
And then have some insane user license agreement clause that further limits your liability.
EULAs
Yeah, I realized after I wrote it that I didn’t sound entirely coherent. That’s what I get for being up in the middle of the night 🙂
I think along free-software lines a lot. Free software implies that you have the source code, and are free to redistribute it as long as you do not prevent others from doing so once you have done so. My thinking is, if I write The Next Grokster™, and then distribute it with strong cautions that it’s for legal use only, maybe I’m protected.
What happens if someone to whom I redistribute the source code decides to position it as an infringement tool? Do I, the original author of the program, bear responsibility for their actions? Or do they?
My suspicion is that this ruling will balloon. Rather than it simply being a tool to use against infringement, it will become the bludgeon by which proprietary software companies attempt to reduce free software / open-source software projects into quivering masses of “illegal tools”.
EULA’s violate the spirit of FOSS (Free-and-Open-Source-Software). I suspect that soon, you won’t be able to distribute a simple software tool without massive disclaimers.
—
Matthew P. Barnson
Look To Guns
If gun manufacturers aren’t responsible for all the shooting deaths, then I doubt that programmers would be responsible for code that ends up being used for illegal consumer use.
Except
…that a few recent cases have ruled that gun manufacturers *are* responsible for shooting deaths.
— Ben
First effects of Grokster
First effects of Grokster
http://www.cs.princeton.edu/courses/archive/spring05/cos491/writing/ says:
‘Heres the first change that Ive seen due to the Grokster decision. Bonpoo is a service that lets you send large files to other people. It used to be general-purpose; you could send anything to your friends. Now, post-Grokster, they only let you send photos:
IMPORTANT NOTICE: At bonpoo we are constantly testing file transfers services that help people send legal files across the Internet. Given the recent Supreme Court decision we have suspended our free file transfer services except for photos. We apologize for any incovience. Please check out our professional product HeavyMail for an alternative to our prior service.’
By the way, Bonpoo’s website is http://www.bonpoo.com and HeavyMail’s website is http://www.heavymail.com
One Year Later
It’s almost been one year since the landmark ruling of 2005 and the CEO of RIAA is quoted in today’s paper today as seeing illegal file-sharing as “contained.” He says that file-sharing is now flat while paid digital downloads are up almost 77%. Apple tunes has sold more than 1 billion songs while popular media-swapping software portals BearShare, WinMX and Grokster have been legally slaughtered.
My opinion is that, if the industry tracing numbers are right, then a plug may have been filled in the leaking holes of the music industry float, but the movie biz better watch out.
Meanwhile, I just realized I haven’t paid for a piece of packaged music, in any form, since the summer of 2001.
Interesting
I’m willing to bet that the drop in illegal file-sharing, coupled with the rise in paid downloads, has less to do with the crackdowns as it has to do with the wider selection that’s now available for purchase online.
My opinion has always been that I’m happy to pay a buck a song. So iTunes is the first place I look for something. Only if it’s not available there do I find myself tempted. It’s not the actual payment I’m trying to avoid so much as a half hour trip to the store.
I wonder if I’m alone in that feeling, or if a number of people feel the same way. I’ve always thought if RIAA wanted to lessen shared music, they’d need to adapt their sell structure to the new technology.