March 27, 2005
View Comments | Post CommentMGM v. Grokster
This Tuesday the Supreme Court will hear a case that will have an immense impact on my career, as well as a significant impact on all of our lives. They're going to hear MGM v. Grokster, which has twenty-eight of the world's largest entertainment companies suing StreamCast, the owners of Kazaa, Morpheus, and Grokster. They allege that the companies who make technology tools, which are often nothing more than protocols (like Bittorrent, for instance), are party to the infringement that people choose to use their products for.
This case is actually small potatoes for the plaintiffs, but with it they are aiming to set a precedent to use against other technology companies (P2P and otherwise). This precedent would hold liable anyone making tools that end up being used for infringing purposes. If the court sides with MGM, they are choosing the fiscal interests of one industry (entertainment) over those of another (technology), and in so doing establishing a principle that would make most of the computing innovations of the last forty years guilty of contributory infringement.
This doctrine could be further extended on this precedent. It is analogous to suing Ford because they make vehicles that can be used as getaway cars in robberies. Or, to use a less ridiculous analogy, and one that is currently relevant and that people might actually think about, it is like suing gun manufacturers because people shoot people with the guns they make.
What they are doing is saying that technology protocols that have substantial non-infringing uses are guilty of infringement ipso facto, regardless of whether or not infringement occurs. At issue is the Sony betamax decision that established that the betamax (the first home video system) was legal despite the fact that it could be used to tape shows to which the user had no license. Hence, technology is not guilty. People commit crimes, not technology. If MGM wins, this precedent would be overturned, which would also, for instance, cause makers of copy machines to be potentially liable for people copying books without the permission of the publishers.
No one is saying it ought to be legal to download music to which one doesn't have a license (despite the actions of myself and nearly everyone else in the country). What people are saying is that the fact that people might use p2p software for this purpose, and indeed that fact that they are using it for infringing purposes, is irrelevant to the legalality of the software itself. You can't hold Sears guilty because someone clubs their neighbor to death with a wrench. You can't hold Bic guilty because someone writes a libelous letter. You can't hold Nike guilty because someone kicked someone. Etc.
The case is being argued by the EFF, and funded partially by Mark Cuban (a content owner!). This is the kind of thing I want to do with my life. Those of you who have money to donate, keep the EFF in mind. Those of you who don't, hope for the best. There are something like fifty amicus briefs filed in favor of the plaintiff, which is encouraging. All the amicus briefs for the defense are by dumb orgs that have nothing to do with law like Kids First Coalition, Concerned Women Foundation, etc.
Ugh. Go EFF!
Posted at March 27, 2005 8:22 PM | Comments (0)
