September 28, 2023

Splitting the Grokster Baby

David Post at the Volokh Conspiracy predicts, astutely, the outcome of the Grokster case. He predicts that the Supreme Court will try to split the baby by overturning the lower court decision (which Hollywood is asking for) while upholding the Sony Betamax doctrine immunizing designers of dual-use technologies from secondary liability (which technologists are asking for). How will the Court do this? Here’s Post:

The Court has an easy “out” here, and my experience has been that when they’re presented with an easy out they usually grab it. The Ninth Circuit in this case affirmed the grant of summary judgment to Grokster, holding that on any reasonable version of the facts, Grokster could not be held liable for “contributory copyright infringement” because the software involved is “capable of substantial non-infringing uses” under the Sony v. [Universal] case. The record company plaintiffs want the Court to “tighten up” the Sony standard, and to say, in effect, that the non-infringing uses that these P2P networks have are not “substantial” enough under Sony.

That would be a disaster for technology providers — but I don’t think that’s what the Court will say. Instead, I think the Court will send the case back to the Ninth Circuit and say: you were right that, under Sony, the non-infringing uses here are substantial enough so that, standing alone, providers of these p2p technologies can’t be held liable for the copyright infringements of network users. But — and here’s the critical part — on these facts, it doesn’t stand alone; there’s evidence in this record that Grokster and the other defendants actively encouraged and induced its customers to infringe copyrights, and that inducement of this kind is not protected by the Sony safe harbor. The Court will then instruct the Ninth Circuit to re-open the case and evaluate whether or not this evidence is enough to hold the defendants liable on an inducement, or “aiding and abetting,” theory of liability.

In doing this, the Court would be drawing a line between acts of technology design, which would not trigger secondary liability, as long as the technology is capable of substantial noninfringing use, and other acts, which could trigger secondary liability. If the Court isn’t careful to draw this line carefully, we could be left with a terrible muddle.

Consider, for instance, a vendor’s decision not to try to incorporate filtering technologies into its product. This is a decision about the design of the product, but the Hollywood briefs argue that it is also (or instead) a decision about which market to enter, i.e. a non-design decision. Ideally, the Court would make clear that this is a design decision and therefore protected under Sony. But if the Court leaves this issue unaddressed or, worse yet, simply hints at moral disapproval of Grokster’s lack of filtering, technologists may be left in the dark as to which kinds of design decisions are really covered by Sony.

In my predictions for 2005, I predicted that the Court’s ruling would not provide clarity for future technologists. A vague split-the-baby decision is one way that could happen.

[To be safe, I’ll follow Post and belabor the obvious: a prediction is an assertion that something will happen; it doesn’t imply that the predicted event is or isn’t desirable.

I’m being a bit cagey about my own views here, partly because I’m going to be leading class discussions about Grokster soon, and some of my students are probably reading this. Sometimes students take positions that they think will please the professor, on the expectation that they’ll get higher grades just because they agree with the professor. I do my best to reward students for making creative and well-reasoned arguments, regardless of whether I agree with them. If anything, I try to lean the other way, and reward students for disagreeing with me, if they do it well.]

Balancing Tests in the Grokster Briefs

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.

Grokster Briefs: Toward a More Regulable Net

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.