Perspective: Grokster and the wisdom of Solomon

Make no mistake about it. With the entire e-tech, software and entertainment industries up in arms, the Grokster case was the judicial equivalent of war.

The Grokster case was the judicial equivalent of war.

Distilled to its essence, Grokster presented a reprise of the issue first presented more than 20 years ago in the Sony Betamax case, in which the court refused to bar the sale of videocassette recorders. That issue is: Can the manufacturer or seller of a neutral instrument--a medium or device that can be deployed for legitimate or infringing purposes--be held liable for consumers' use of that instrument to infringe copyrights in protected works?

This issue arises in various other guises. We don't ban the sale of baseball bats, hammers or automobiles--even though they may be used as deadly weapons--because they serve legitimate, socially useful purposes. We do prohibit conduct that employs these instrumentalities for unlawful purposes.

Consistent with this reasoning, in the Betamax case the Supreme Court focused on the device itself. Borrowing from the closest intellectual property analog, the patent law's protection of the sale of articles that are "suitable for substantial noninfringing use," the court held that since VCRs have substantial noninfringing uses, sellers could not be held responsible for the acts of customers who violated the copyright laws by using their recorders for purposes of unlawful copying.

In the Grokster opinion, the court took great pains to preserve the Betamax principle by declining to revisit that decision and resting its opinion on other grounds. Rather than focus on the legal status of peer-to-peer file-sharing software in light of the extent to which it could be distributed and used for legitimate versus illegitimate purposes, Justice Souter looked to Grokster's and StreamCast's conduct, and this analysis proved to be their downfall.

Justice Souter looked to Grokster's and StreamCast's conduct, and this analysis proved to be their downfall.

Citing statements and actions of Grokster and StreamCast that were not merely designed to encourage the use of their file-sharing software but were also specifically "directed to promoting infringement," the court held that such conduct was not shielded from liability by the rule of Betamax. On the contrary, the court reasoned that, just as the end user of an inherently neutral instrument is held accountable for conduct comprised of its unlawful, or even criminal, use, one who distributes file-sharing software "with the object of promoting its use to infringe copyright...is liable for the resulting acts of infringement."

Thus, looking to the classic, conduct-based law of inducement, the court held that the claims against Grokster and StreamCast were improperly dismissed, and that these companies could be held liable for contributory copyright infringement, because their statements and actions tended to show an intent to encourage infringement with the use of their file-sharing software. These statements and actions fell into three principal categories.

First, in purposefully touting itself as a replacement for, and seeking to lure the former users of, Napster, a notorious facility for the swapping of copyrighted materials. Second, in failing to take any steps to filter or otherwise impede the mass-scale infringement known to occur with the use of their file-sharing systems. And third, in adopting an advertising-based business model built on high-volume levels of usage that could only be sustained by the exchange of commercially valuable, copyrighted materials.

By sidestepping, and thereby preserving, its decision in Betamax and, at the same time invoking a conduct-based standard of contributory copyright infringement liability, the court deftly served the interests of both software and technology developers and copyright content owners, though neither may be entirely satisfied with the end result.

One thing is for certain: Would-be infringers will continue to seek, and unscrupulous developers will continue to promote, new methods and devices by which they can obtain something for nothing, and copyright owners will continue their struggle to find technological, legal and commercial means to keep them in check.

Biography
Paul Connuck is a partner in the intellectual property and technology department of the law firm Kramer Levin Naftalis & Frankel.

More Perspectives

what about Guns?

How can this ruling not apply to guns? The only reason anyone buys a gun is to kill something. The only "legitimate" use for a handgun would be for use by police or militia only. So how is it that no gun manufacturer gets sued when Johnny Drive-by kills innocent people???

[eviltoaster]

try to mature some before posting

Aren't you intelegent? Militia and police are Not the only "legitimate" uses for handguns. Not only is your discussion completely off-topic, but it's a baffling display of how uncouth you really are. Most people know the honest and legal uses of arms, but to appease your crass intelect, I'll tell you directly.

There are over 6 Billion Amercians who farm and work in Agriculture, and the number of farming families steadily increase as people move away from metropolitan areas.
Ranching and Farming Families must be empowered to control the population of feral animals in order to protect their livelyhood. Animal Control Programs are expensive and incredibly useless.
Arms are the only answer, time tested and historically valued.

All Americans have the constitutional right to arms to protect ourselves and our rights. Criminals and Monarchs simply Love unarmed populations. Nobody has the right to take away Any of our constitutional rights, whether its freedom of speech, or the right to bear arms.

Please mature some before posting again, and remember to stay on-topic.

[ProjectGSX]

Because there are legal ways to kill

Buy a gun and kill someone who has broken into your home. In some places, such as Texas, this is legal. Buy a gun to go hunting. Again, youre buying it with the intent to kill animals - legal in many places. Guns are legal because they have the many legitimate uses. A majority of people who purchase guns do so for legitimate purposes.

As guns are easily traceable, wouldnt it make sense that most crimes commited with guns arent being used by people who purchased them through legitimate sources?

[unknown unknown]

Big difference

I would dispute your claim that there aren't any legit reason to get a gun even though I personally am not a gun owner. In addtion to examples provided by previous posters in response to your comments, many people target shoot at firing ranges. There are differences between technology like P2P clients and firearms. In the case of the former, restrictions can be placed in the software that help discourage people from sharing content they aren't suppose to. In the case of the later, the technology is not yet in place (it may not even be avaliable) to only allow gun owner to use their weapon for legit uses. This ruling focuses on intent, basicly if these P2P companies encourage users to infringe then they can be held liable for subsequent infringment that takes place. One doesn't hear of gun makers encouraging people to go out kill others or otherwise break the law. I think we can be reasonably sure that if they did, they would quickly find themselves in hot water.

[fireball74]

Doesn't apply to guns...

There are many legal uses for a gun outside of the law enforcement and millitary. Hunting is legal. Self-defense is legal. Guns aren't the problem. It's the people who use gun for illegal acts that are the problem. Also, if you outlaw guns, all you're doing is taking away the legal use of them. Criminals will still get and use guns at will. It's just the nature of it all.

Also, and think about this deeply, probably one of the reasons why the US hasn't been invaded yet, aside from having our finger on a button connected to nukes, is the fact that we have a right to bare arms. I can say without a doubt that if someone, anyone, were coming into my house to harm me or my family, they're dead or severaly hurt, be it a gun or baseball bat. It's self-defense. Of course, it's also still legal here in Texas to hang someone from a tree if they're caught stealing your cattle. ;) I loath the day, if it ever comes about, that our right to carry a own and carry guns is revoked. It'll be a dark day indeed.

A better analogy

I think that the firearm analogy works better when you consider automatic and semi-automatic weapons or heavy caliber weapons (like the 50 cal rifle).

In my opinion, there is no arguing that these are not weapons of war. Therefore their intent is to kill as many people as possible (or tanks for that matter).

I completely agree that everyone has the right to bare arms. But if someone is allowed to own a 50 rifle (which can go through armor) then they should also be allowed to own a grenade.

The manufacturers intent is very difficult to define and in the case of guns, even harder to prove.

Interesting, but misguided.

Funny, I've fired a number of different types of guns over my lifetime, but I've never killed anything with one. Well, unless of course you count pop bottles, clay pigeons, and various types of targets.

But yes, guns can kill people, so we shouldn't allow anyone to have them even though they are commonly used for perfectly legal sports which can be played perfectly safely by people who understand and practice gun safety. But I know, because there are some gun owners out there stupid enough to use their legally purchased firearms to kill people, we should make all guns illegal and sue gun manufacturers because they clearly made them to kill people.

Of course, every time we try to outlaw something, it simply goes underground. Do you think we should try prohibition again? Because we all know what a great success that was. This comes from a person who doesn't drink and has a general disdain for alcohol in general. It's not as if you can't pretty quickly find an unregistered handgun if you want to; again, the black market supplies the illegal need.

Besides, if we extend your argument, the following industries should be liable for massive damages: the automobile industry, as they clearly produce automobiles for people to drive drunk and conduct hit-and-runs; the archery industry, as the only possible reason to shoot a bow or crossbow is to kill someone with the arrow; the kitchen utensil industry, as they clearly produce knives and forks for use as weapons; virtually every sports company in existence for creating wooden and metal sticks, clubs, and bats specifically to be ideal for murder; the stun gun industry, as the only reason to purchase a stun gun is to torture others with it--I guess the same applies for cattle prods; media companies for producing anything with halfway violent content, because all they are trying to do is inspire people to violence; the chemical industry, because all of their products are actually just designed to poison people; the explosives industry, because who uses C-4 and dynamite and so on for anything but the sick joy of watching your next door neighbor blow up along with his house--fertilizer companies for the same reason, as we know many fertilizers are quite explosive and that is their intended, despite the name; the tool industry, as these are only used for dismemberment, torture, and murder; and the fireworks industry, as bottle rockets are only made for shooting at people.

Okay, I'm finally running out of examples. The point is, many items have legal and nonlegal uses--ethical and unethical ones. Trying to advocate an gun control issue simply because "guns have no uses other than to kill" is an argument that simply doesn't hold water. Frankly, while I don't agree with the gun control position, there are many far better arguments available to you if you'd actually check into the matter a little bit--nothing absolute, of course, but arguments that can't be refuted nearly as easily.

Your comment reveals itself early to be a poorly thought out assumption that relies on virtually no facts and understanding of the usage of firearms in today's society. Yes, one of the primary uses of firearms is gun violence, but so is hunting, self-defense, other gun sports, and in certain occupations for legitimate purposes, such as agriculture, bail enforcement, and obviously law enforcement. Also, I seriously doubt any court would buy the argument that gun companies try to encourage gun violence, so the analogy with P2P companies is flawed. The gun registry someone was talking about is not a technological solution, but a bureaucratic one, which are usually very flawed. You'll have to do much better than that.

[Michael Grogan]

The only legit use?

Tell that to the two deer and one elk that I have so far killed and eaten with my .357 magnum handgun. I hunt for meat and for enjoyment of the great outdoors. I find the handgun to be much more sporting than a rifle because I need to approach much closer to my target. This year I will use a bow for the first time and I look forward to that as well but don't ever try to tell me my handgun has no legitimate use. And don't ever try to take it away. The only thing I'll give up freely is the lead.