Court conflicted over file-swapping
The Supreme Court put on public display Tuesday two conflicting reactions to the apparently widespread practice of downloading copyrighted songs and movies from the Internet: a concern that software makers may be too enthusiastically encouraging the habit, and a concern that copyright law not be made so restrictive that it stifles new surges of technology creativity. The Court also showed some signs of unease with the adequacy in the Internet age of the central precedent at issue, the 1984 ruling in the Sony Betamax case.
In a one-hour hearing on the biggest Internet test case yet, Metro Goldwyn Mayer, et al., v. Grokster, et al. (docket 04-480), a number of Justices seemed attracted to the idea of letting copyright owners go after software developers on a theory that they are “actively inducing” theft of copyrighted works by computer users linked by that software.
Richard G. Taranto, a Washington lawyer for person-to-person, file-swapping software developers Grokster and SteamCast Networks, said copyright owners remained free to bring such an inducement claim and seek damages for it, if the case is sent back to District Court for a trial. (The case reached the Supreme Court after summary judgment in the District Court, affirmed by the Ninth Circuit.)
But Donald B. Verrilli, Jr., representing the movie studios, music recording studios and other owners of copyrighted works, countered that an “active inducement” remedy would be seriously deficient in putting a stop to the practice of file theft. He cautioned the Court not to affirm the Ninth Circuit on the key issue in the case — the meaning of the Sony Betamax decision as it defined secondary copyright infringement — because that would give infringers “a perpetual license to keep going forward, and not ever have to do anything to check the practice” of massive file-downloading.
What the P2P software designers want from the Court, Verrilli protested, is “a rule of immunity: all they have to do is speculate that there will be some non-infringing uses [of their product], and then you can go right on infringing.”
Several members of the Court — but especially Justices Antonin Scalia, Stephen G. Breyer and David H. Souter — seemed troubled about the potential impact of a tightening of copyright law on small inventors — “the guy in the garage,” as Souter put it.
Breyer wondered whether a lawyer for a developer — for example, the inventor of the iPod — could assure his client that he could continue to develop new products without fear of being held liable for the illegal uses to which the products might be used by some. Verrilli tried to provide assurances.
Scalia wondered aloud “how much time you get [as a designer] to bring up the lawful use so it outweighs the unlawful use,” and thus copyright liability is averted. Verrilli said inventors would not have “absolute certainty” that they could avoid liability.
Souter said: “The question is: how do we know in advance that we can give the inventor — that is, the developer — the confidence to go ahead? How do we avoid the foregone conclusion that the iPod developer is going to lose his shirt” in copyright damages?
Such developers would be protected, Verrilli suggested, unless they adopted “the business model” that he said Grokster and StreamCast Networks had adopted: creating a giant “infringing machine” with software that they not only know will be used to steal copyrighted works, but also had been engaging in activity to promote such unlawful use.
Verrilli’s argument placed the heaviest emphasis on this “business model” argument, premised on the claim that Grokster and StreamCast simply adapted the old Napster file-sharing software so that they could avoid copyright liability, even while profiting handsomely from it. But his emphasis upon that argument — strongly seconded by Acting Solicitor General Paul D. Clement, arguing for the federal government as amicus — led Justice Sandra Day O’Connor and others to suggest that the remedy should be an “active inducement” claim, rather than a secondary copyright infringement claim.
Justice Ruth Bader Ginsburg gave voice to a concern that seemed to be troubling a number of her colleagues, too — the proper legal standard for judging secondary infringement in the digital age. She and others several times asked the attorneys to spell out their interpretation of the Sony Betamax standard, and to articulate why they thought it might not be adequate. (The Sony standard has usually been understood as barring secondary copyright infringement if the developer has created a product that has the capacity for “substantial non-infringing uses” that were “commercially significant”.)
Ginsburg herself said the Sony decision was not so clear on the standard it was laying down, because of extensive discussion in that opinion beyond the formula on non-infringing uses.
The Court is expected to decide the case later this spring.
oral argument today in Grokster
Lyle Denniston of SCOTUS blog has highlights from today’s oral argument in Grokster. Although you never should conclude too much from the Justices’ questions, the recap sounds somewhat promising for those worried that the Court might loosen or even aba…
Comment by Lee Blog — March 29, 2005 @ 12:27 pm
Classiness, All Around Us.
Click to explore more WILLisms.com. In no particular order, WILLisms.com presents classiness from the blogosphere: 1. The SCOTUS blog notes that the Supreme Court is conflicted over file-swapping on the internet: The Supreme Court put on public displa…
Comment by WILLisms.com — March 29, 2005 @ 12:28 pm
Did Justice Breyer actually ask if “a lawyer for a software designer — for example, the inventor of the Ipod — could assure his client” about anything? One would hope he would know that the iPod (not “Ipod”, guys, sorry) is a hardware product, not the output of a “software designer.”
Comment by Matt — March 29, 2005 @ 12:37 pm
MGM v. Grokster: The Showdown
Today the United States Supreme Court will hear oral arguments in the most important technology and copyright case in two decades. At stake is the future of a legal doctrine that has protected innovators of all stripes since the…
Comment by Copyfight — March 29, 2005 @ 12:38 pm
Supreme Court Worried About “the Guy in the Garage”
SCOTUS Blog is first out of the gate with a report from today’s Supreme Court hearing in MGM v. Grokster: Several members of the Court — but especially Justices Antonin Scalia, Stephen G. Breyer and David H. Souter — seemed…
Comment by Copyfight — March 29, 2005 @ 12:47 pm
Supreme Court Worried About “the Guy in the Garage”
SCOTUS Blog is first out of the gate with a report from today’s Supreme Court hearing in MGM v. Grokster: Several members of the Court — but especially Justices Antonin Scalia, Stephen G. Breyer and David H. Souter — seemed…
Comment by Copyfight — March 29, 2005 @ 12:55 pm
Liveblogging Grokster
Several bloggers — include EFF Staff Attorney Wendy Seltzer — are in DC today for the Supreme Court hearing on Grokster, where the movie studios are asking the court to criminalize any technology where the designers have failed to anticipate the way…
Comment by Boing Boing — March 29, 2005 @ 1:05 pm
Grok This
The Black Robes AP > National > High Court to Hear Arguments on File-Sharing Technology” href=”http://www.nytimes.com/aponline/national/AP-Scotus-File-Sharing.html”>hear oral arguments today in MGM v. Grokster. Basically, and I’m sure Chris or TAO will…
Comment by i'm just waiting for the robot invasion — March 29, 2005 @ 1:06 pm
Peer-to-peer file sharing and the Supremes
Over at SCOTUSblog they are doing a nice job of covering the arguments before the US Supreme Court today about file sharing.
The Supreme Court put on public display Tuesday two conflicting reactions to the apparently widespread practice of downloa…
Comment by Digital Detritus — March 29, 2005 @ 1:51 pm
For Grokster SCOTUS coverage…
Watch this space : Tim Armstrong, currently a DC appellate lawyer and HLS LLM ‘05 (and other good things), has blogged what he heard this morning.
Comment by John Palfrey — March 29, 2005 @ 2:34 pm
Who’s blogging Grokster
Here’s a quick roundup of bloggers posting accounts of this morning’s oral arguments before the Supreme Court in MGM v. Grokster, the landmark-in-the-making case on the legality of file-sharing networks: SCOTUSblog: “The Supreme Court put on public dis…
Comment by seattlepi.com Buzzworthy — March 29, 2005 @ 2:57 pm
MGM v. Grokster Oral Arguments
Reports on the oral arguments…
Comment by JurisPundit — March 29, 2005 @ 3:17 pm
MGM v. Grokster Oral Arguments
Reports on oral arguments…
Comment by JurisPundit — March 29, 2005 @ 3:33 pm
http://legalaffairs.org/howappealing/032905.html#001366
“Court conflicted over file-swapping”: Lyle Denniston provides this report online at “SCOTUSblog.”…
Comment by How Appealing — March 29, 2005 @ 3:38 pm
In fact, the iPod has a very sophisticated software program developed by Jeff Robbin. Breyer’s question is right on target.
Comment by elee — March 29, 2005 @ 4:26 pm
The fact that Justice Breyer even mentioned an iPod is a huge sign of the judicial system’s slow acceptance of and comfort with digital issues. Not that long ago, it took fifty pages of findings of fact defining everything from a keyboard to e-mail for cases with similar concepts. If Justice Breyer mixed up hardware and software in the middle of oral argument, at least he knows software has applications in this case.
Comment by Joel — March 29, 2005 @ 4:51 pm
M.G.M. / Grokster Oral Arguments
Oral arguments happened today in the case of M.G.M. v. Grokster. Strange bedfellows all around on this - you’ll see established recording artists like Henley and Sheryl Crow against independent artists like Brian Eno and Chuck D. Here’s some wire…
Comment by Politology — March 29, 2005 @ 5:27 pm
Supreme Court Caves to Peer-to-Peer Pressure
The judicial system is even slower than dial-up internet. Gelf’s legal commentator on why online music piracy can’t be eliminated in court.
Comment by Gelf Magazine — March 29, 2005 @ 5:52 pm
Supremes Cave to Peer-to-Peer Pressure
The judicial system is even slower than dial-up internet. Gelf’s legal commentator on why online music piracy can’t be eliminated in court.
Comment by Gelf Magazine — March 29, 2005 @ 5:56 pm
There is plenty of software in an iPod. From a hardware perspective it is pretty much just a harddrive in a box.
Comment by Christopher Baus — March 29, 2005 @ 6:15 pm
Grokster Argument Summary
Courtesy of the blog devoted to the Supreme Court, SCOTUSBlog.
Comment by Pierce Law IP News Blog — March 29, 2005 @ 10:16 pm
One of the most important Supreme Court Cases of our lifetimes
Some (even many) may think that I am being a bit hyperbolic in my title for this post. But I honestly think its true. As bad as the dilution of the neutral reportage privilege is in terms of free speech,…
Comment by Calblog — March 29, 2005 @ 11:47 pm
Grokster Wrap up
Comment by MrDave's WebLog — March 30, 2005 @ 2:51 am
Grokster Wrap up
Comment by MrDave's Blog! — March 30, 2005 @ 2:51 am
Copynight
The night after the Grokster case was argued in the Supreme Court, a batch of Austinites gathered in the Club…
Comment by BookBlog — March 30, 2005 @ 9:16 am
Grokster arguments recapped
Recaps of oral arguments in the Grokster case yesterday provided exhaustive accounts of the proceedings. Bloggers who attended the hearings provided early reports, including Lyle Denniston of SCOTUS blog who posted highlights, as well as Timothy Armstr…
Comment by Silicon Valley Media Law Blog — March 30, 2005 @ 12:18 pm
Grokster’s Problem
Yesterday, the US Supreme Court held its hearing on the Grokster case. The plaintiffs (Hollywood) assert that Grokster (and by extension all other free file-sharing services) is solely organized for the purpose of stealing copyrighted material. They ha…
Comment by The Interocitor — March 30, 2005 @ 3:13 pm
Wary of stifling innovation and unwilling to countenance widespread IP theft, Supreme Court seems torn in Grokster case
Supreme Court torn in Grokster arguments
With Hollywood and Silicon Valley,…
Comment by Silicon Valley Watcher — March 30, 2005 @ 11:31 pm
Supremes To Decide On Grokster Later This Spring
Well, oral arguments in the MGM v. Grokster case concluded yesterday, and the reports from the scene conclude that the justices were very pointed in their questioning of the plaintiff, MGM. Reading different sources give us different impressions of th…
Comment by SFist — March 30, 2005 @ 11:55 pm
I find it far more troubling that they find Napster and Gnutella to be equivalent. I could be wrong, but Grokster functions on the Gnutella communications protocol, and is *extremely* different from Napster.
There *are* substantial noninfringing uses to Gnutella based software. MP3’s can be shared legally–it depends on the particular file. If I record a guitar riff and put it up for my P2P network of choice, that is a noninfringing use. Certainly it *can* be used for infringement purposes–but then again, so can a CD burner, your email, AIM, and the Internet itself.
–Petey
Comment by Petey — March 31, 2005 @ 11:20 am
Petey, you hit the argument on the head. Napster’s centralized software protocols were why it was subject to liability previously. One of the arguments here is that the next generation of P2P software, such as Grokster, does not suffer from this problem by being a purely decentralized software. The biggest difference here is that Napster could look at exactly what was being sent over the Napster software at any time by maintaining the central “switchboard server” for lack of a better term. Grokster, on the other hand, sends out the software and this time the P2P nodules connect directly to each other instead of through a centralized switchboard.
Comment by Joel — March 31, 2005 @ 5:15 pm
Meira um MGM gegn Grokster
Comment by NetFrelsi — April 1, 2005 @ 5:33 am
The issue at hand is creativity and american culture is being threatened. Ligitimate business has been drasticly effected. The “guy in the garage” may very well be your son or daughter writing the next “Let It Be” or “Stairway To Heaven”. However creating material that will be unlawfully reproduced worldwide, diminishes the value and chances of survival for writer, moviemakers, authors etc.. for our generations.
Where would McDonalds and Burger King and Wendy’s be if I began giving away my burgers at a new franchise? Or we produced and delivered free gasoline at a certain station?
Are you really going to tell me people will buy burgers and gas from anyone if they can get them for free.
The scary aspect is that our children will grow up with the philosophy that they can get things, unconditionally, for their enjoyment, without consequence-for free. It actually discourages innovation, if you look at the issue from another perspective. What about software companies having their software “swapped” on-line. It is certainly an important issue of our generation for the future of the creative arts.
Comment by robert — April 6, 2005 @ 2:13 pm
Do any of the Justices own or use a personal computer?
Comment by SupremacyClaus — April 8, 2005 @ 5:28 am