The best way to understand what a case means if, like me, you aren't a
lawyer, is to ask some. In the recent
in MGM v. Grokster et
al, filed on August 19, it's easy to do so, because there were amici
briefs filed by law professors on both sides of the question. There is no
better way to understand what a case is about than to read such
briefs. The Electric Frontier Foundation, which represented StreamCast
Networks, Inc., one of the victorious defendants, has made the legal documents
On MGM's side, 9 law professors submitted an
amicus brief explaining why they felt the lower court had made a
mistake in granting Grokster and StreamCast a partial summary judgment and
requesting that the Ninth Circuit Court of Appeals reverse the decision.
On the other side, 40 law professors submitted an opposing amicus brief, supporting the lower
court's decision and urging the Ninth Circuit Court of Appeals to affirm
it. Both groups tried to persuade the three-judge panel that the law was
on their side.
All of this goes to show you that the law is not reliable like math. You
don't ever want to plot a course to Mars based on legal opinions, because
you might not arrive safely at your destination. You can always find a
lawyer somewhere who will argue a side, both sides, or all sides of any
issue. In the Grokster case, some of the finest lawyers in the world
contributed their thoughts, on both sides, making it one of the most
interesting and significant cases of the year.
The appeals court decision was extraordinary, in that they accepted what
can best be described as arguments you can find in Larry Lessig's book,
"Free Culture," argued most ably by EFF's Fred von Lohmann for StreamCast
and Michael Page of Keker & Van Nest for Grokster. The oral arguments are
a delight to listen to, and EFF has them available as Ogg, WMA and MP3 files. Groklaw has made an unofficial transcript of the proceedings.
The court decided to draw a line in the sand and tell the Hollywood
copyright forces that their push to extend and morph copyright law beyond
its current borders, in effect to rewrite the Supreme Court's 1984 Sony-
Betamax decision (Sony Corporation of America v. Universal City
Studios, Inc., 464 U.S. 417, 104 S. Ct. 774, 78 L. Ed. 2d 574 ), so as to
make it easier to go after contributory infringers, was unacceptable.
Sony held that as long as a technology has substantial non-infringing
uses, it can't be held liable for copyright infringement by users. The
Hollywood copyright forces were trying to get the court to accept instead
the new idea that if infringement levels reached a certain percentage,
then manufacturers and programmers could be held liable.
Remembering that this is the same appeals court that upheld
Napster, it's an extraordinary development and, in my opinion, a most
significant victory, particularly for programmers, who stood to lose a
great deal had the case gone the other way. Why? Because the copyright
forces wanted to hold distributors of software tools -- and that means
programmers too, not just companies -- liable for the infringements of
It was nothing less than an attempt, as the ruling put it, to get the
judiciary to fashion a new way to go after distributors and programmers
for vicarious and contributory copyright infringement. Why? Simply
because, as the law professors on MGM's side delicately put it, such a
transmogrification would satisfy "the policy interests of indirect
liability -- particularly for online infringement, where locating, suing,
enjoining and recovering from millions of direct infringers is extremely
difficult and inefficient."
In short, MGM and the music industry wanted the courts to make it easy for
them. Going after the actual infringers on P2P systems is hard and
expensive. So, they asked the court to let them go after those making and
distributing software that some might use for the infringement instead.
The conceivable consequences of such an expansion of vicarious liability
were set forth in oral argument by Mr. Page:
To expand the
law of vicarious liability, to attach liability to
anyone who in theory could have acted as a policeman, leaves no border
it at all and leaves every technology vendor, every inventor, every
the mercy of copyright holders who want to look around and go, 'You
done something about this. You're liable.'
The court refused, based on the Sony-Betamax case, telling them to get
Congress to fashion a more nuanced remedy than any court can give.
Distinguishing the technology of Napster from that of Morpheus and
Grokster (the centralized server in the former), the court noted that 10%
of files shared on the systems are non-infringing, which is, in the words
of Judge Noonan in the oral hearings, "a lot of files".
The court accepted the argument that every new technology is met by the
music and entertainment industry with cries of theft and predictions of
copyright doom along with demands that courts shut down the new
technology. This happened with the invention of cassette recorders, VCRs,
radio, and cable, as Lessig points out in "Free Culture". But throughout
history, US courts have been loathe to kill a new technology just to
satisfy the old, vested interests affected by the new tech. Once again,
the court has told those clamoring for a judicial remedy that they must
seek a remedy in the legislature, if any is to be found.
Jason Shultz, an attorney with EFF, explains the significance of the
Grokster decision, particularly to programmers:
One of the biggest wins in Grokster for programmers was the explicit
rejection of two principles that the RIAA and MPAA were pushing the Court
to adopt in order to 'update' the Sony Betamax rule. If either rule had
been adopted for Peer to Peer companies, it would have applied to
programmers as well. Both rules would have been disastrous.
1) The first was that makers of technology (including programmers) should
be liable for the infringements of their users based on the proportion of
users who use the technology to infringe, instead of whether or not the
code is merely capable of substantial non-infringing uses. The Plaintiffs
argued that since over 90% of P2P users infringed copyright, that was high
enough to hold the programmers and distributors liable. This would have
been a very dangerous rule for any programmer, especially those who
release open source code, because it is almost impossible to predict all
the ways in which your users will employ your code. . . . [T]o hold . . .
programmers . . . liable for the future, unpredictable and unintended uses
of code would change the legal landscape of programming dramatically and
make it a very dangerous road to go down. Fortunately, the Court rejected
this attempt to 'update' Sony Betamax and stuck with the time-honored rule
that any technology with a substantial non-infringing use cannot be held
contributorily liable for infringements by end users.
2) The second major victory was an explicit rejection of the RIAA/MPAA's
other proposal --- that under vicarious liability, programmers and
distributors of technology should be held liable for end user
infringements if they could have re-designed their products to allow less
infringement, but didn't. In this case, the MPAA/RIAA argued that the P2P
companies could have forced updates on users that installed filters into
their programs to filter out copyrighted works, but didn't. This 'willful
blindness', Hollywood argued, should make the P2P companies responsible
for the infringements of their end users. Such a ruling would have been an
absolute nightmare for any programmer, not only because again, it is
almost impossible to predict all the ways one will use a program to
infringe and then preemptively restrict them, but also because the reality
is that no venture capitalist will fund a software project in such a
world. If programmers and companies are liable unless they make their
programs as incapable of copying as possible, very few programs will ever
be written. The only pragmatic way to release a program, then, is to get
MPAA/RIAA approval beforehand -- essentially handing Hollywood veto power
over any new code or program released. Again, the Court rejected this
approach, giving programmers protection from both financial ruin and
attempts to undermine their freedom to write code as they see fit.
EFF took the case for just these reasons. We saw how Hollywood wanted to
change the law and all the bad precedent it would set. So we defended the
P2P companies on these principles in order to protect every technology
maker, including open source programmers. Under the eyes of the law, even
non-commercial open source programmers are no different that P2P companies
and without the legal protections in Grokster, all programmers would
suffer. Thus, EFF stepped up to the plate to defend the freedom to code
They not only stepped up to the plate. They hit a home run. Of course, the
losing side has the option of an appeal to the Supreme Court. And, as it
happens -- actually, I'm sure it's no happenstance -- there is already an
attempt to overturn Grokster's holding, by means of the Inducing
Infringement of Copyrights Act of 2004 [INDUCE], currently working its
way though Congress, with the backing of the RIAA/MPAA. It is sponsored
by Senators Patrick Leahy and Orrin Hatch, who has said it
is explicitly meant to reverse Grokster, so as to accomplish the very
things that the Ninth Circuit Court of Appeals just rejected. Such a law
would find companies and programmers liable if they release code that
makes it easier for copyright infringement to occur, although in light of
this stunning Grokster ruling, they may find it is a harder sell now,
since its language, as well as Mr. Hatch's in pushing it, contradicts the
Ninth Circuit Court of Appeals' decision.
Yes, that Mr. Hatch, the father of one of the attorneys representing
SCO, Brent Hatch. The apple doesn't fall very far from the tree.
In a case like this, it makes sense to distribute the result via the
available peer-to-peer networks. So, for those whose browsers are set up
for such things, the EFF has published a magnet
link and an ed2k
link for downloading the decision.
It doesn't hurt to boost the clearly non-infringing content available on
P2P networks. One thing about the Hollywood copyright sharks: you can
be sure they'll be circling back around.
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