Few tears will be shed if Grokster and StreamCast are driven out of business as a result of the Supreme Court’s decision. The companies are far from lovable, and their technology is yesterday’s news anyway.
A much more important issue is what the rules will be for the next generation of technologies. Here the Court did not offer the clarity we might have hoped for, opting instead for what Tim Wu has described as the Miss Manners rule, under which vendors must avoid showing an unseemly interest in infringing uses of their products. This would appear to protect vendors who are honestly uninterested in forstering infringement, as well as those who are very interested but manage to hide it.
Lower courts will be left to apply the Grokster Court’s inducement rule to the facts of other file distribution technologies. How far will lower courts go? Will they go too far?
The litmus test is BitTorrent. Here is a technology that is widely used for both infringing and non-infringing purposes, with infringement probably predominating today. And yet: It was originally created to support noninfringing sharing (of concert recordings, with permission). Its creator, Bram Cohen, seems interested only in noninfringing uses, and has said all the right things about infringement – so consistently that one can only conclude he is sincere. BitTorrent is nicely engineered, offering novel benefits to infringing and noninfringing users alike. It is available for free, so there is no infringement-based business model. In short, BitTorrent looks like a clear example of the kind of dual-use technology that ought to pass the Court’s active inducement test.
A court that followed the Grokster analysis closely would have to let BitTorrent off the hook. To do otherwise, I think, would be to institute a de facto predominant-use test, finding BitTorrent liable because too many of its users infringed. This might be dressed up as an inducement analysis, but it would be clear to everybody what was going on. Given the squishiness of the Grokster analysis, we can’t rule this out.
So the stage is set for the next phase of the copyright/technology litigation war. The music and movie industries don’t want to live in a world where BitTorrent is allowed to exist. The Supreme Court didn’t give them enough yesterday to kill BitTorrent. So the industries’ goal will be to stretch the Grokster rule, just as they tried to stretch the Sony rule before hitting a sandbar in the Grokster district court. We’ll see a careful campaign of litigation against peer-to-peer services, trying to gradually stretch the noose of inducement liability until it fits around BitTorrent’s neck. Failing that, we’ll see a push to get Congress to codify (the industries’ interepretation of) the Grokster rule.
The real winners, as usual, are the copyright lawyers.