April 6, 2005 4:00 AM PDT

Supreme Court mulls file-swap 'pushers'

As the Supreme Court mulls the fate of file-swapping networks, justices are studying a rarely used element of copyright law that sparked bitter controversy when raised in Congress last year.

Last week, the nation's top court heard arguments from the entertainment industry and file-swapping software companies in a landmark review of the legal status of peer-to-peer networks. In the course of that hearing, several of the justices appeared interested in finding a middle ground that would focus on companies that actively encouraged, or "induced," copyright infringement.

A similar idea was at the core of last year's debate over the "Induce Act," a U.S. Senate bill sponsored by the record labels and staunchly opposed by much of the technology world. Applying this concept to file-swapping companies would be an unusual twist in copyright law, but the idea has been backed by some influential groups, including the Institute of Electrical and Electronics Engineers, or IEEE.

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What's new:
As the Supreme Court ponders the fate of peer-to-peer networks, justices appear interested in finding a middle ground that would focus on companies that actively encouraged copyright infringement.

Bottom line:
Applying this concept to file-swapping companies would be an unusual twist in copyright law, and would mean another long round of litigation for Grokster and StreamCast.

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"It would allow the legal test to focus on your own behavior, over which you have complete control, rather than on the action of third parties," said Annette Hurst, a San Francisco copyright attorney who has been following the Grokster case.

The Grokster case remains one of the most closely watched technology court cases in recent history, with the entertainment and technology industries each contending that an unfavorable outcome could devastate their ability to operate.

The Supreme Court is reviewing two separate lower court decisions that said file-swapping software companies Grokster and StreamCast Networks should not be held legally responsible for the copyright infringement that takes place on their networks.

The hearings last week allayed some fears on both sides. The judges appeared unwilling to let new peer-to-peer companies use "unlawful expropriation of property as a kind of start-up capital," as Justice Anthony Kennedy said. Entertainment companies said that showed the court had little sympathy for file-swapping software companies.

But justices were clearly sensitive to the computer industry's concerns that technology itself could trigger lawsuits, even when companies develop products with legal uses in mind. That fear appeared to lead several to seek a middle ground focusing on companies' behavior, rather than the technology itself.

"Given that there are conceptually excellent uses of this technology...does actual inducement take care of (the problem)?" Justice Stephen Breyer asked the government's attorney, who was arguing on behalf of the entertainment companies.

Middle ground or lawsuit heaven?
The inducement idea hinted at by the court could open new vistas in copyright law, drawing a line for acceptable behavior in the

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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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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.
Posted by unknown unknown (1951 comments )
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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.
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