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Tuesday, June 28, 2005
BitTorrent: The Next Main Event
Grokster | Posted by Edward Felten at 01:27 PM
Few tears will be shed if Grokster and StreamCast are driven out of business as a result of the Supreme Court's decision. The companies are far from lovable, and their technology is yesterday's news anyway.
A much more important issue is what the rules will be for the next generation of technologies. Here the Court did not offer the clarity we might have hoped for, opting instead for what Tim Wu has described as the Miss Manners rule, under which vendors must avoid showing an unseemly interest in infringing uses of their products. This would appear to protect vendors who are honestly uninterested in forstering infringement, as well as those who are very interested but manage to hide it.
Lower courts will be left to apply the Grokster Court's inducement rule to the facts of other file distribution technologies. How far will lower courts go? Will they go too far?
The litmus test is BitTorrent. Here is a technology that is widely used for both infringing and non-infringing purposes, with infringement probably predominating today. And yet: It was originally created to support noninfringing sharing (of concert recordings, with permission). Its creator, Bram Cohen, seems interested only in noninfringing uses, and has said all the right things about infringement -- so consistently that one can only conclude he is sincere. BitTorrent is nicely engineered, offering novel benefits to infringing and noninfringing users alike. It is available for free, so there is no infringement-based business model. In short, BitTorrent looks like a clear example of the kind of dual-use technology that ought to pass the Court's active inducement test.
A court that followed the Grokster analysis closely would have to let BitTorrent off the hook. To do otherwise, I think, would be to institute a de facto predominant-use test, finding BitTorrent liable because too many of its users infringed. This might be dressed up as an inducement analysis, but it would be clear to everybody what was going on. Given the squishiness of the Grokster analysis, we can't rule this out.
So the stage is set for the next phase of the copyright/technology litigation war. The music and movie industries don't want to live in a world where BitTorrent is allowed to exist. The Supreme Court didn't give them enough yesterday to kill BitTorrent. So the industries' goal will be to stretch the Grokster rule, just as they tried to stretch the Sony rule before hitting a sandbar in the Grokster district court. We'll see a careful campaign of litigation against peer-to-peer services, trying to gradually stretch the noose of inducement liability until it fits around BitTorrent's neck. Failing that, we'll see a push to get Congress to codify (the industries' interepretation of) the Grokster rule.
The real winners, as usual, are the copyright lawyers.
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Comments
I agree that BitTorrent is likely the **AA's next battleground. I also believe it is likely that Bram will escape Grokster inducement liability. The tricky part is that Bram does take donations. If it comes to bear during discovery that Bram is making a pretty penny, a court may decide that Bram is inducing a la Grokster. If he was found liable, I think the only recourse left would be to start non-profit, open source organizations for p2p technologies. That way developers could get paid fairly for their efforts but the impropriety of profiting off of infringement would disappear.
Posted by: Susheel Daswani at June 28, 2005 02:10 PM
Edward has an excellent point; BitTorrent is the next litmus test. It is clear that rights holders don't want to live in a world of BitTorrent (with existing usage patterns) - they sued Diamond Multimedia for making mp3 players!
http://news.com.com/2100-1023-234092.html?legacy=cnet&tag=st.ne.1005-200-1529236.
It is also clear that it is a dual-use technology which is not marketed like a "descrambler". But the court gave rights holders a new club called "inducement" with fairly ambiguous tests...I do believe that well intentioned technologists could fall prey to over-protective rights holders who unwittingly threaten their distribution channels via nafarious actions of their users.
Good luck Bram! I'm sure you're glad you didn't name your company Bitster!!
Posted by: Jeff Schrock at June 28, 2005 04:12 PM