Supreme Court mulls file-swap 'pushers'

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technology world which has remained ambiguous for years.

In patent law, inducement happens when a company produces a product and then provides instructions on how to use it in a way that violates another company's patent, or advertises it in a way that encourages infringement. That could happen with an add-on component that isn't itself illegal, but that isn't allowed to be used with another patented product, for example.

Courts haven't used similar reasoning as the foundation for settling a major copyright case for decades, attorneys say. But some groups, including the IEEE, which filed an independent brief with the Supreme Court pointing to the issue, say it's the best way to balance modern technology and copyright.

The trick is to figure out exactly what "inducement" might mean.

"That's my big worry, that the court wants to recognize some inducement claim, then we face another 15 years of litigation to figure out what that means."

--Fred von Lohmann, attorney, Electronic Frontier Foundation

Last year, the Recording Industry Association of America was the primary supporter of Sen. Orrin Hatch's Induce Act, which purported to focus on companies' behavior in this way, rather than on the technology itself.

But critics across the technology industry worried that the language of that bill was too broad, and could even trigger lawsuits against the producers of MP3 players like Apple Computer's iPod. Similarly, any effort by the Supreme Court to focus legal liability on active encouragement could open up a Pandora's box of definitions and subsequent lawsuits, some say.

"That's my big worry, that the court wants to recognize some inducement claim, then we face another 15 years of litigation to figure out what that means," said Electronic Frontier Foundation attorney Fred von Lohmann, who represents StreamCast Networks.

If the court does decide to focus on the issue of inducement, it almost certainly will mean another long round of litigation for Grokster and StreamCast Networks. The current hearings have focused only on a summary judgment ruling in the entertainment companies' case, which has not yet gone to a full trial.

Early briefs from Hollywood studios and record labels cited e-mails from the file-swapping companies that allegedly showed Grokster and StreamCast Networks wanted to "surpass" Napster.

It's impossible to tell exactly where the Supreme Court justices are heading with their decision, and their questioning on the issue last week may provide only false clues. In the meantime, file-swapping fans are still doing their best to help persuade the court that peer-to-peer networks can have legal uses.

Bloggers, asserting that court clerks are testing out the Grokster technology, are encouraging readers to download Grokster and use it to provide files that are legal to trade. Experts say that's likely to have little effect on the court's ruling--even if a clerk did happen to stumble on one of the legitimate files--because justices are primarily focused on the facts already established in the record of the case.

The court is expected to rule in mid-June.

Inducement rule makes sense

Pseudephedrine antihistamines do a lot of good, but you can use the product to make illegal methamphetamine. You wouldn't sanction the Sudafed folks for making a pseudephedrine product, but you would for using a sales pitch that involved instructions for using the product to make meth. Same deal here. It's the come-on that's improper, not the technology.

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Reply

Unfortunitly things are rarely so cut and dry. Your example is rather explicit what about more subtle cases? I've been using archive.org's "way back machine" to look at older versions of Groksters site and I can't find anything that appears to be using infringing material as lure or an attempt to get people to infringe. That is unless the mere mention of music and/or software is sufficent to constitute inducement. Would telling someone how to share an mp3, avi, or zip file etc be inducement? Evenone of those formats can be used to trade copyrighted material along with material that legal to share.

Instructions

The problem with that argument though, is that most (but not all) of the p2p programs are careful with their instructions. I've see a number over the last few years and each one of them were very vague on the type of file downloaded.
For example, you'll see in their instructions "to download a file, click blah blah blah..."
you'll never see anything saying "if you want to steal movies click here, if you want to steal games or music, click here."
Granted there are some exceptions to the rule, but those companies are stupid and deserve to be shutdown.