Freedom to Tinker

The biggest issue in the Grokster case is whether the Supreme Court adjusts or clarifies its precedent from the Sony Betamax case. The fate of Grokster itself is much less important than what ground rules the Court imposes on future innovators.

The core of the Betamax opinion is this oft-quoted passage:

The staple article of commerce doctrine must strike a balance between a copyright holder’s legitimate demand for effective – not merely symbolic – protection of the statutory monopoly, and the rights of others freely to engage in substantially unrelated areas of commerce. Accordingly, the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses.

There are two ideas here: the need to balance the interests of copyright holders against the interests of others, and, following from this need for balance, immunity from contributory infringement for devices sufficiently capable of noninfringing use. Grokster often argues from the immunity language. The studios often argue from the balance language, asserting that Grokster’s reading of the immunity language is inconsistent with the balance language. Many of the briefs filed on Monday take this latter angle.

What’s interesting is that most of those briefs, though relying heavily on balance arguments, seem to miss an important aspect of Betamax’s balance language. They do this by setting up a balancing test between the interests of copyright owners and the interests of Grokster. But that’s not quite the balance that Betamax is talking about.

The Betamax court would balance the interests of copyright holders against those of “others freely to engage in [noninfringing] areas of commerce.” Here “others” refers not only to the maker of the challenged product (here, Grokster) but to everybody who benefits from the product’s existence. This includes users who benefit from noninfringing uses of the product, musicians or publishers who use the product to disseminate their work, users who will benefit from not-yet-discovered uses of the product, developers of future noninfringing products who learn from seeing the product in operation, and so on. These benefits are often diverse, diffuse, and difficult to foresee, which is why the Betamax court was cautious about imposing liability for infant technologies.

I’ve read most of the briefs filed in Monday’s group. Of these, I’ve seen only three that seem to understand this point about what interests need to be balanced. These three come from the video store dealers; a group of professors (Kenneth Arrow et al.); and IEEE-USA. These briefs differ in their ultimate conclusions, which is not surprising. Understanding which interests need to be balanced is only a starting point for analysis.

Many briefs were filed yesterday in Grokster, the upcoming Supreme Court case which has broad implications for technology developers. (Copies of the briefs are available from EFF.) There’s a lot to discuss in these briefs. Today I want to focus on two of the amicus briefs, one from the Solicitor General (who represents the U.S. government), and one from a group of anti-porn and police organizations.

The Solicitor General offers an odd discussion of P2P and the Internet’s history (pp. 2-3):

1. Peer-to-peer (P2P) computing technology enables users of a particular P2P network to access and copy files that are located on the computers of other users who are logged in to the network. Unlike traditional Internet transactions, in which a user’s computer obtains information from a specific website operated by a central computer “server,” P2P networking software gives users direct access to the computers of other users on the network. [Citation omitted.] P2P file-sharing software thus performs two principal functions: First, it searches for and locates files that are available on the various “peer” computers linked to the network, and second, it enables a user to retrieve and copy the desired files directly from such computers.

This history could hardly be more wrong. The ability to share files between any two computers on the network was an explicit goal of the Internet, from day one. The web is not a traditional aspect of the Internet, but a relatively recent development. And the web does not require or allow only large, centralized servers. Anybody can have a website – I have at least three. Searching for files and retrieving copies of files is a pretty good description of what the web does today.

What the Solitor General seems to want, really, is a net that is easier to regulate, a net that is more like broadcast, where content is dispensed from central servers.

The anti-porn amici come right out and say that that is what they want. Their brief uses some odd constructions (“Like any non-sentient, non-judgmental technology, peer-to-peer technology can be misused…”) and frequent recourse to the network fallacy.

Their main criticism of Grokster is for its “engineered ignorance of use and content” (p. 9; note that the quoted phrase is a reasonable definition of the end-to-end principle, which underlies much of the Internet’s design), for failing to register its users and monitor their activities (e.g., p. 13), for failing to limit itself to sharing only MP3 files as Napster did (really! p. 17), and for “engineer[ing] anonymous, decentralized, unsupervised, and unfiltered networks” (p. 18).

These arguments (as the lawyers say) prove too much, as they would apply equally to the Internet itself, which is ignorant of use and content, does not register most of its users or monitor their activities, does not limit the types of files that can be shared, and is generally anonymous, decentralized, unsupervised, and unfiltered.

What kind of net would make these amici happy? The Solicitor General speaks approvingly of LionShare, Penn State’s home-grown P2P system, which appears to register and log everything in sight. Of course, LionShare doesn’t fully exist yet, and even when it does exist it will not be available to the public (see LionShare FAQ, which says that the source code will be available to the public, but the public will not be allowed to share files with “authorized” academic users). For a member of the public who wants to share a legal, non-porn, non-infringing file with a wide audience, the Web, or Grokster, is a much better technology than LionShare.

These briefs are caught between nostalgia for a past that never existed, and false hope for future technologies that won’t do the job.