The US Supreme Court ruled today in MGM vs Grokster. While the court ruled in favor of MGM, the ruling is not the death of P2P that many might thought it would be. As Justics Souter explains in the ruling,
We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.
Clearly, then, the liability is limited to those who would distribute P2P specficially for copyright infringement. As Picker MobBlog points out,
MGM won on paper today, but my first reading of the opinion makes me wonder whether the victory will have any bite outside of this specific litigation. Intent-based standards, after all, are among the easiest to avoid. Just keep your message clear -- tell everyone that your technology is designed to facilitate only authorized exchange -- and you have no risk of accountability.
All-in-all, this sounds like an acceptable ruling to me that doesn't rule out P2P for non-infringing uses and will deter the content industries from seeking legislative solutions that could possibly close down P2P use all together. IMHO, any organization/company that markets a technology directly for illegal use does deserve to be liable. Seems fair.
More good coverage at The Importance of
"Deserves to be Liable"
It is an interesting question. I saw a remark on /. comparing it to selling a lock-picking device with the slogan "Use this to break into your neighbors' homes" vs. "Use this to get into your own if you lock yourself in." It seems we are saying now that what really matters is how the technology is marketed. Something is fishy here--I think we're trampling on freedom of speech and acting rather hypocritically towards the makers of these technologies. It's some kind of doublespeak that's really bothering me, though I'm not able to describe why yet.
social responsibility
I see it more along the lines of social responsibility and accepting liability for marketing a product for an illegal (or even unethical) use. Imagine if gun manufacturers marketed guns for committing crimes? There was quite a bit of controversy a while back (I think ten years or so ago) about cheap, disposable handguns (sub $100) as being designed specifically for criminal use (although not marketed as such). These handguns were stimulating increased armed crimes because of their accessibility and disposable nature. Similarly, what is the social responsibility of marketing cigarettes to minors?
Yet, I can see how people will feel discomfort with this ruling. On the one hand, it obviously shifts the IP balance a little more in the favor of protectionists. But when looked at in isolation, to me it seems a very fair approach that tries to strike the right balance. It's just too bad that other IP rulings and legislation can't be as fair to both sides, particularly Eldred vs Ashcroft and the DMCA.
The other thing I think we'll see is more developed legitimate P2P use and better arguments for its use. Suppose that Morpheus and Grokster had strongly encouraged more legal P2P use, say something like creating a public commons program that encourages their members to mirror open source applications or Creative Commons texts in their P2P file collections. This sort of proactive promotion from the P2P services would certainly work in their favor in legitimizing their business model based on what the rulings have demonstrated. At the same time,the ruling seems like it will protect applications such as BitTorrent which have already well demonstrated legitimate use, and indeed, are commonly used in that fashion. So what we have here it the end of a business model based on lack of legal content sharing, not the end of a technology.
the sky is not falling
you got me motivated, matt.
charlie