« What is "Inducement"? | Main | Justice Scalia and "second-class citizenship" »
Monday, June 27, 2005
More questions than answers
Grokster | Posted by Rebecca Tushnet at 04:24 PM
My name is Rebecca Tushnet. I teach at the Georgetown University School of Law. While I was not involved in Grokster, I do have a clear bias: Justice Souter, for whom I clerked, is the very model of a thoughtful, committed and careful jurist, and thus I am inclined to support any proposition he endorses.
That said, I am concerned that not every court is as careful as Justice Souter – this was a problem with his opinion in Campbell v. Acuff-Rose, which quite clearly says that satire can be fair use (though it has comparatively less advantage in the fair use analysis than parody does) but which has widely been overread to say that parodies win fair use defenses, but satires don’t. I fear that similar uncertainties will follow the Grokster ruling. In fairness, though, I can’t imagine a plausible majority opinion that wouldn’t leave many thorny questions.
The previous posts have made a number of excellent points which I’ll try not to reiterate, though I adore Kathleen Sullivan’s image of “strangling little iPods in their cradles.” I don’t quite get Charlie Petit’s idea that the Betamax involved “authorized source material and authorized distribution channels” whereas Grokster doesn’t. Except for unreleased pilots such as “Global Frequency” and bootlegs, the music and TV shows available through peer-to-peer networks came from authorized source material and authorized distribution channels (CD stores and broadcasts). Then they got moved to forms the copyright owners didn’t authorize and couldn’t control – a lot like TV shows got moved to blank videotapes.
This leads into my big questions: What would this opinion really have meant for the VCR? Would “See any TV show you want to, anytime you want to see it” or “build a library” count as enough obvious encouragement of librarying – which was not found to be fair use – to justify a finding of contributory infringement? (I’m still looking for a copy of the “build a library” ad, unfortunately.) What about “any TV show” in the context of pay cable, which again was not analyzed as fair use when the Court looked at time-shifting free broadcast TV?
[Images in extended entry]
Moving onward, what would a responsible lawyer tell Apple about “Rip. Mix. Burn.” after today? Does that clearly promote infringement?
How about Sourceforge, which distributes Azureus, a major BitTorrent client? Let me make clear that Sourceforge offers BitTorrent software, not torrents or files – it seems to me trivial even in the pre-reversal 9th Circuit to establish that sites hosting unauthorized torrents are contributory infringers. Sourceforge is not such a site. It offers only the peer-to-peer technology, naked and pure. Except: drill down into the description on the site a bit, and you get this: “The RSS Feed Scanner is an automatic RSS feed parser which is highly configurable and allows unnattended operation via its advanced filtering capabilities. .... The filter strings can be easily edited via the graphical configuration tool, and each filter can also support targeting of specific episodes within a series of the same titles (for example in downloading episodes of shows).” So maybe not so pure after all. Maybe this means that Sourceforge is a black hat, despite initial appearances, or that this particular plugin is inherently infringement-promoting. I would definitely not rest easy tonight if I ran Sourceforge.
Another question is whether the decision, which is explicitly targeted at “devices” including software, will have spillover effects on non-device-related conduct. Already in the Napster/venture capitalist litigation and in the Canadian P2P litigation questions have been raised about whether someone who enables sharing of files on her computer is encouraging infringement by those who download those files. If all she does is enable (or fail to disable, depending on how her file-sharing software is configured) uploading, has she done enough to be liable for others’ infringement? This may not be all that important if the copyright owner’s right of distribution is broadly defined, but the scope of the distribution right remains unsettled.
Relatedly, I’ve long wondered whether this PBS lesson plan, which encourages the creation of unauthorized derivative works and even their dissemination on the Internet, constitutes contributory infringement. That page has plenty of “solicitation that broadcasts a message designed to stimulate others” to create unauthorized copies (slip op. at 20). Many people will, of course, think that most or all of the resultant art is fair use – but fair use is not usually what people want to rely on when copyright owners’ lawyers come around. If I encourage you to create mash-ups of existing songs, believing that at least some of the time the results will be fair use, have I induced infringement if, some of the time, the results are infringing?
Justice Souter doesn’t get into this question, because Grokster conceded that unauthorized copying using its software would be infringement, but it could become important for other technologies, including a future “Rip. Mix. Burn.” campaign.
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via SCOTUS BlogThe Supreme Court ruled unanimously that developers of software violate federal copyright law when they provide computer users with the means to share music and movie files downloaded from the internet.The decision when it appears. Unani... [Read More]
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» Grokster Loses - Unanimously - Inducement Test? from The Importance of...
via SCOTUS BlogThe Supreme Court ruled unanimously that developers of software violate federal copyright law when they provide computer users with the means to share music and movie files downloaded from the internet.The decision when it appears. Unani... [Read More]
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» Grokster and Guns from Picker MobBlog
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Comments
First of all, excellent posts all around. The Court certainly has produced a stimulating opinion. What stuck me about Grokster is how patent like, the Court is trying to make copyright. Following Justice Stevens precedent of exporting contributory infringement into patent law, the Grokster court readily imports inducement of patent infringement. The beauty of this move is that it takes a divided decision like Sony (5-4) and turns it into a unanimous decision that essentially affirms Sony while creating a new basis for secondary liability. My initial thought was that the copyright-patent analogy would divide the Court in Grokster. But the appeal to inducement allows Justice Stevens to have his patent-copyright harmonization and also satisfy Justice Ginsburg, who was critical of patent-copyright parallels in Eldred.
Posted by: Shubha Ghosh at June 27, 2005 05:27 PM
"The filter strings can be easily edited via the graphical configuration tool, and each filter can also support targeting of specific episodes within a series of the same titles (for example in downloading episodes of shows).”
Fair. Use.
Posted by: SLS at June 28, 2005 12:15 AM
Great comments!! I have thought a lot about Sony's Betamax marketing in the past 24 hours (Professor Eric Goldman pointed me towards your post).
Are you willing to say that if Grokster hadn't conceded that "unauthorized copying using its software would be infringement[,]" then SCOTUS (namely Justice Souter) would have probably addressed fair use ala Betamax?
If so, thats too bad. :( It could have been a lot more interesting...
Posted by: Matthew Goeden at June 28, 2005 04:44 PM
SourceForge doesn't of course put in the above-quoted questionable language, but rather provides free, unsupervised hosting to Azureus. I would guess that any liability would go to the authors of Azureus, not SourceForge.
Posted by: Adam at June 29, 2005 11:30 PM