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Monday, June 27, 2005
Hollywood beats Grokster but not Silicon Valley
Grokster | Posted by Kathleen Sullivan at 01:37 PM
There was little doubt Hollywood was going to win Grokster; the only issue was how. The Court wasn’t going to leave the motion picture and recording industries at the mercy of limitless free filesharing. Grokster wasn’t likely to get away with being a clever Napster any more than, to recall Mill’s famous example, a clever inciter would get away with saying to a mob “corn dealers are starvers of the poor” instead of “storm the farmhouse.” And the Court doesn’t generally grant cert. from the 9th Circuit to affirm.
But the litigating positions taken by both sides kept veering toward extremes. Many in the motion picture industry kept pushing for a 51% rule: if the primary use of a technology infringed copyright, contributory liability could follow. Whoops, there goes broadband. As you read this, at least half of what is whizzing by in cyberspace over connections like yours is likely infringement. So that couldn’t be the law; it’s unlikely that even Congress would enact it.
Grokster’s defenders kept pushing for an equally untenable 99.9% rule: if a technology, no matter how much it is used to infringe, is theoretically capable of a noninfringing use, then no contributory liability. Well, it’s an easy parlor game to think up a list of hypothetical noninfringing uses. This is a lot like overbreadth under the First Amendment—don’t stop hard-core porn because the rule might sweep in nude shots from the National Geographic. Not surprisingly, Sony, like Broadrick in the overbreadth context, introduced the word “substantial” as a way of ensuring that the balance is struck in favor of real rather than hypothetical innovation.
So a middle way between these two extremes was needed, but which one? Try to get the Court to split the difference at a 75% rule? Unlikely to work, because it sounds too legislative and this is an area in which the Court knows that technology is rapidly changing and may make any bright-line rule quickly obsolete. Use a standard instead of a rule, i.e. “overwhelming,” “vast majority,” “lion’s share” (it is MGM after all) of uses are infringing? Well, that would guarantee full employment for lawyers but not give a lot of clarity to the lower courts.
But there was an alternative third way in plain sight: to punt on the exact degree of infringingness required and to focus on active inducement. And if there was any disagreement among the justices on how inhibiting to innovative technology an objective rule or standard would be, such that they couldn’t agree on any way to read or change Sony, this offered an attractive way out. Plus this has the advantage of not adjudicating the messy fact question on the record below of just how much Grokster usage was infringing (90%? 75%? Now? Someday?)
They did disagree on the policy question, we now know from the concurrences, and they did take the escape hatch, with Justice Souter writing for the Court that “one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting act is of infringement by third parties.” On this standard, Hollywood surely has a strong case against Grokster on remand.
Sony remains unaltered because the Court couldn’t agree on how to restate or reform it. Three justices (Justice Ginsburg joined by Chief Justice Rehnquist and Justice Kennedy) would have reread Sony with a tilt toward Hollywood, requiring defendants to do a lot more than get a few declarations from pals like Brewster Kahle to show a reasonable prospect of substantial or commercially significant noninfringing use. Like a business plan and projected advertisement stream. Even Souter’s opinion showed some droll skepticism toward Grokster’s noninfringing use defense on this record: “While there is doubtless some demand for free Shakespeare, users seeking Top 40 songs …or the latest release by Modest Mouse, are certain to be far more numerous than those seeking a free Decameron…”
Justice Breyer joined by Justices Stevens and O’Connor would have read Sony with a tilt toward Silicon Valley, with Grokster’s showing of 10% noninfringing uses good enough if it weren’t for that darn active inducement problem. Breyer, one of only two dissenters in Eldred, is consistently alert to the problems of evolving technology and anxious that courts not do anything to strangle little Ipods in their cradles.
So what’s the bottom line? While it wasn’t a 51% rule, the decision was still obviously a strong win for Hollywood, and while it wasn’t a 99.9% rule, it also preserved important protections from secondary liability for technology innovators whose business model is something other than exploiting infringement. The outcome was a tribute to the advocacy of those pushing for a middle way (the SG, Don Verrilli for the studios at the oral argument, the high-tech amici who wrote in support of neither side).
Some in the Grokster camp will likely try to put a game face on the loss by predicting the ruling will be easily evaded by clever inducers. That is unlikely. Willful blindness will not be a helpful business model for the future, even for technopiles like Justice Breyer, who wrote that Grokster itself “may well be liable under today’s holding.” On the other hand, Breyer’s opinion reminded Hollywood that it could do more to introduce digital watermarking and fingerprinting to stop making things so easy for the geek world to pillage it. Future rulings on active inducement will likely take into account how hard each side really tried.
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Comments
My father has smoked cigarettes since before I was born, and for more than 30 years has exclusively used Bugler tobacco, hand rolled into Zig Zag filters. At least a few times in my adult life, I've heard someone say something to the effect of "why are Zig Zag papers legal, when they're only used for marijuana?" When I bring up my father's cigarette smoking method, I'm regarded with disbelief. Since it's probably fair to state that 95% of all Zig Zag papers are used for marijuana, is there anything wrong with it being kept legal for the 5% using them for legal substances? And what if it was 98%? 99.999%? At what point do we decide that the minority's right to engage in legal behavior is completely outweighed by a majority's use of a product/system/service for illicit means?
I think part of the problem is that observers and critics frequently misunderstand and misrepresent what Grokster/etc. are designed for. They are not designed to "break copyright law". They are designed to allow a user to download music. As has been repeated ad nauseum, if the user is downloading music he owns the CD of back home, or of a local band encouraging such downloads, or songs in the public domain, he is not breaking copyright law. But whether he is downloading "legal" or "illegal" music is his choice, and his alone. Grokster isn't forcing the infringement on you. Along those lines, I'd wager 99% of car drivers speed, from the occasional 1-mile-over-the-limit driver to those who regularly drive 5-10 miles over posting. But you wouldn't say a car was designed to "break the law". That's not its function. A car is designed to get you from one place to another. You can use it in a legal way, or an illegal way, but that doesn't change the purpose of the vehicle. Even sports cars, which zoom well over the speed limit in television advertisments, and whose manufacturers brag openly about the ability to travel in excess of 120mph, are still just mechanisms of transporation, not illicit devices intended, as a matter of purpose, to evade legal responsibility, even if such thoughts are openly discussed and agreed upon by the designers. Again, the question is choice on the part of the person USING the product, regardless of whether 5% or 50% or 100% of users end up making a SPECIFIC choice.
Posted by: John Addis at June 27, 2005 05:59 PM