Digital Tweed: The Morning After Grokster
The Supreme Court has spoken. In a 9-0 decision on June 27 concerning the case
of MGM vs. Grokster, the US Supreme Court implicitly affirmed that
copyright is a very good thing and explicitly stated that “one who distributes
a device with the object of promoting its use to infringe copyright…is
liable for the resulting acts of infringement by third parties.” In other
words, if the primary or most common use of your firm’s product is to
help individuals with copyright infringement, and if your firm promotes the
product as a way to violate copyrights, then your firm can be held liable for
the resulting acts of copyright violations by individuals who use your product.
D'es this billboard violate the letter or spirit of the Supreme Court's recent Grokster decision?
No question, this is a really big win for the music and movie industries. The
Court’s decision overturns two lower court rulings that Grokster (www.grokster.com),
StreamCast Networks (www.morpheus.com),
and other companies that produce and distribute peer-to-peer (P2P) software
were not liable if individuals used these products to violate copyright. Indeed,
the Supreme Court felt that there was ample evidence that Grokster and StreamCast
clearly intended to aid and abet copyright infringement, stating “the
unlawful objective was unmistakable.” Writing for the Court, Justice David
Souter’s opinion stated that there was “evidence of [copyright]
infringement on a gigantic sale” and that the “probable scope of
copyright infringement is staggering.”
Not surprisingly, there was a bit of a victory dance in the post-Grokster press
releases from the entertainment industry. The Recording Industry Association
of America (www.riaa.org),
the trade group that has been aggressive in filing John D'e lawsuits for P2P
copyright infringement, applauded the Supreme Court’s unanimous decision,
stating that the Court “has addressed a significant threat to the US economy,”
while “helping to empower the digital future for legitimate businesses—including
legal file sharing networks— by holding accountable those who promote
and profit by theft…. This decision lays the groundwork for the dawn of
a new day…that will bring the entertainment and technology communities
even closer together, with music fans reaping the rewards.” Concurrently,
Dan Glickman, president of the Motion Picture Association of America (
www.mpaa.org)
announced that the Court’s “unanimousruling is an historic victory
for intellectual property in the digital age, and is good news for consumers,
artists, innovation and lawful Internet businesses.”
Not to be outdone by the music and movie associations, StreamCast Networks
vowed in a post-Grokster press release “to continue its fight for freedom
to innovate.” The release proclaimed that “once all the evidence
is put forward, we are confident that it will be proven that Morpheus did not,
d'es not, and will not promote or encourage copyright infringement.” Additionally,
the StreamCast statement proclaims that the “Supreme Court decision is
Orwellian in that Hollywood—and the copyright and entertainment industries—now
become the thought police.”
The ‘Morning After’ Challenge
Not surprisingly, Grokster and Morpheus software were both still readily available
on the Web in the days after the Court’s decision. Even as the decision
was a clear victory for the plaintiffs, the music and movie industries confront
a huge “morning after” problem: changing individual attitudes and
behaviors about copyright infringement and P2P downloading. A clear challenge
for the media industries is that in this case, the genie—free P2P software—has
been out of the bottle for a very long time (at least as measured by Internet
years) and has a growing user base.
BigChampagne (www.bigchampagne.com),
a market research firm focused on media consumption, reports that the number
of people in the US using P2P networks more than doubled between June 2003 and
June 2005, from 2.9 million in 2003 to 6.2 million in 2005; moreover, the average
download also more than doubled in size, from 3.97MB to 8.99MB. The entertainment
industry’s inevitable follow-on lawsuits may eventually bankrupt Grokster
and StreamCast, but the litigation will not necessarily change individual behaviors.
Now that Justice Souter has told us intentionality could lead to liability, perhaps consumer ISPs will acknowledge their obligation to promote copyright education.
The morning (and months) after the Grokster decision may not have big consequences
for colleges and universities, since they have been dealing with the problem
for some time. True, many in the campus community will understandably lament
the potential impact of the Grokster decision on legitimate P2P networking and
future technological innovation. But as previously noted in “Lost
Under the Streetlight,” (Digital Tweed, November 2004), data from
the Campus Computing Survey (www.campuscomputing.net) shows that the vast majority of four-year colleges and universities
already have campus policies to address inappropriate P2P activity, as do more
than half of community colleges. Additionally, growing numbers of institutions
include copyright education as part of a mandatory (often online) “digital
rights and responsibilities” program for new students and faculty.
Moreover, P2P infringement remains a consumer issue, not just a campus problem.
Despite the RIAA’s continuing efforts to portray college students as the
primary population of digital pirates, as of March 31, 2005, only 4 percent
of the 8,400-plus John D'es targeted as part of the RIAA’s P2P lawsuits
were college students.
Intentionality and Liability
That said, the months after the Grokster decision may get
very interesting for consumer ISPs. Consider, for example,
a billboard promoting SBC/Yahoo’s DSL service that I’ve
seen in a number of locations in Los Angeles over the past
few months (see image, page 10). SBC/Yahoo! is selling
broadband access, but the marketing message specifically
links the service to content: “faster downloads” of music
and movies.
Viewed through the filter of the Grokster decision, the
SBC/Yahoo! billboard could be read as encouragement to
infringe on copyright. Paraphrasing Justice Souter in
Grokster, “the [probable] unlawful objective is unmistakable.”
The SBC/Yahoo! billboard, like the marketing efforts
promoting Grokster and Morpheus, can be read as encouraging
“recipients [customers] to…download copyrighted
works,” while the advertising reflects “active steps to
encourage infringement.”
Perhaps the Grokster decision will prompt the RIAA and
others in the media industries to turn their attention to P2P
as a consumer issue, one that g'es well beyond campus
networks. Some months ago, an RIAA official told me that
the association’s press releases have targeted colleges
and college students over consumers and consumer ISP
services (for example, Adelphia, Comcast, Earthlink, SBC,
TimeWarner, Verizon, and others) because colleges
respond to the threat of litigation, whereas consumer ISPs
and telcoms view litigation as a cost of doing business.
But now that Justice Souter and his colleagues on the
Supreme Court have told us that intentionality could lead
to liability (“the unlawful objective is unmistakable”), perhaps
the consumer ISPs will begin to acknowledge that
they too have an obligation to promote copyright education,
as opposed to promoting, aiding, and abetting copyright
infringement.