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Sunday, Nov 8, 2009
Monday's ruling against Grokster will do nothing to stop peer-to-peer file sharing -- but it may well stifle technology innovation.
Jun 28, 2005 | Note to technology developers who want to market products that will help people share copyrighted files: Whatever you do, don't end your brand name with "-ster"!
On Monday the U.S. Supreme Court issued its long-awaited decision in the case of MGM vs. Grokster. In this case, the major movie and music companies sued Grokster and StreamCast, two companies that produce peer-to-peer interface software that enables users to share music and video files. Writing the majority opinion, Justice David Souter cited Grokster's very name -- "an apparent derivative of Napster," a company the court characterized as "notorious" -- as evidence of a marketing strategy in which Grokster had knowingly induced massive copyright infringement.
So just to be safe, maybe all companies should send a message to their customers like the one Apple does with its iPods? You know, those stickers and signs that wink at you while admonishing, "Don't steal music"?
Back in 2001 a federal court ruled that Napster, the first successful commercial peer-to-peer file-sharing software, had contributed to the infringement of millions of songs. But there is a big difference between Grokster and Napster. Napster's computers monitored who was offering and downloading what. It had a centralized index of users and files. Grokster and Morpheus (StreamCast's version of the same idea) instead left the indexing to the users themselves. Grokster's lawyers argued that in this case the company could do nothing to stop users from sharing music and wasn't responsible for any infringement.
In August 2004 the 9th U.S. Circuit Court of Appeals agreed, upholding a previous district court ruling, and saying that, like Sony's Betamax videocassette recorder 20 years ago, Grokster and Morpheus were not illegal technologies because they could be used for legal activities such as sharing works from the public domain. And because, unlike Napster, which had the capability to track individual users, the companies could not be held responsible for what individuals did with the software.
Overall, Monday's Grokster ruling is a middle-ground decision about a territory that has no middle ground. Souter and the court have issued a Solomon-like decision that will do no good for the plaintiffs, do no harm to infringers -- and could have profoundly negative effects on future innovators of technology.
The decision is a clear loss for Grokster and StreamCast, two companies that set out to be "the next Napster." But it's hardly a loss for copyright infringers and open-source peer-to-peer software developers: More than 100 million working copies of peer-to-peer interface software run on computers all over the world. And amateur programmers are doing much of the best work out there today anyway. A 9-0 decision sounds like a slam-dunk for the copyright industries -- but don't for a moment think that this decision, under any circumstances, will curtail the practice of downloading copyrighted materials.
The peer-to-peer phenomenon is often miscast as the proliferation of a radical set of technological tools meant to steal music. But the fact is, the Internet is fundamentally peer-to-peer. All that Grokster, Kazaa, or LimeWire do is let you efficiently search for keywords of content that sits on other people's hard disks. If you have a problem with peer-to-peer you have a problem with the Internet. And short of shutting it down or radically reengineering it, there is nothing that Hollywood or Washington can do to stifle the file-sharing capabilities of those who use the Internet. Regardless of Monday's decision, the software, music and movies will keep on flowing.
But the grand innovations in American technology may not. If the lower courts read the court's ruling broadly, watch out: This could severely restrict other, more important innovations for decades to come. Even without broad readings, the courts could soon be filled with frivolous copyright suits against technology companies -- handing big entertainment companies like MGM a potent economic weapon to wield against smaller innovators and upstarts that are developing new devices and models of distribution. Souter struggled to construct a decision that would not impede the inventor in her garage who is tinkering away at the next great thing. The problem is, she will definitely have to hire a lawyer now.
