A Copyfighter’s Musings

By now, you’ve probably heard the wonderful news about the Grokster victory and that you’ve read the litany of posts (catalogued by Ernest).  I’ll assume you’ve already done so and touch on a few leftover points:

1.  The opinion is remarkably clear and straightforward.  It builds on the already solid district court opinion and clarifies a few of the details regarding incidental elements of centralization.  My biggest worry was that the court would get caught up in those details, like the relevance of Streamcast’s XML files, and make some vague or elaborate arguments.  Worst case scenario: exemptions for these services, but open-ended language that allowed for suits to be brought again should they add another “incidental” feature that cumulatively could lead to liability.  Instead, the court made fairly clear divisions between these merely “incidental” features.  While not entirely limiting the relevant factors, they stick to hosting lists of infringing files and login servers as key.  The issue is control, and if the other features don’t build in any control over user’s actions, then they can be set aside.

2.  While appropriately narrowing Napster‘s broad holding in this manner, the court followed Napster in its treatment of remedies.  As I discussed before, the Napster decisions went awry when they effectively decided that, once liable, a technology company can be forced to redesign its software in any manner.  Had the Napster courts truly restricted Napster’s policing to the limits of its architecture, it would have helped preserve the thrust of Sony in a significant way.  I can’t really blame the Grokster court for following Napster‘s approach, since even the defendants basically accepted this view so that they could effectively make their argument about vicariously liability.

3.  A lot of folks are bemoaning the decision because it will ratchet up pressure for the INDUCE Act.  Fine – I agree with that take on things to an extent.  It’s unfortunate, but to some extent it was also inevitable.  It’s still worth celebrating that the court got it right.  That’s big.  And until today, the Aimster and Napster decisions were alone as circuit court P2P opinions.  Following Aimster, this decision could have come out the other way.  Now Grokster exists as a contrary circuit court decision.  This could all be rendered irrelevant by INDUCE, but at least this decision gives everyone a chance to fight another day.  Had this gone the other way, we would have two circuits with harsh liability, probably both adopting something close to a negligence approach.  That could have been Game Over – losing in Congress wouldn’t really matter, because we’d already have lost in the courts.

4.  INDUCE might pass in some form before the SC even gets a chance to look at this case.  But if INDUCE gets massively delayed, and SC takes this case before passage of any new laws, that could be quite messy.  Given that the circuits are now split on the standard – expressed explicitly as discussed in footnote 9 – it seems like now would be the time for the SC to step in.  Some people have mentioned that Congressmen may listen to the wisdom of the Grokster decision’s last few paragraphs.  Sounds doubtful.  Would they take more heed if that wisdom came from the SC?  Maybe.  Or, the SC could simply reverse the decision and use something like Aimster’s approach.

At the same time, at least Mary Beth Peters and Co. can no longer treat the Grokster decision as the result of some rogue district court judge.  This is a well-reasoned, unanimous opinion.  Sure, they can still argue that the doctrine is bad, but it’s a bit harder to argue that the court’s interpretation of the doctrine was obviously wrong.

5. I spent a little time today reviewing my thoughts post-district court decision.  Like Judge Wilson, this court clearly did their homework on the technical aspects.  Also, see my earlier article called, “Protecting Sony and the Internet: A Discussion and Critique of Imposing Harsher Secondary Copyright Infringement Rules to Inhibit Peer-to-Peer File-Sharing.”  Hopefully, I’ll be actually finishing that draft sometime in the future and updating it to reflect this case and INDUCE.

Filed by Derek Slater at 8:47 pm under General news
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