Blogosphere weighs in on Grokster ruling

As expected from the most important copyright case of the digital age, there's much discussion in the blogosphere this morning about the Supreme Court's Grokster decision today.

I've been uneasy with Grokster and StreamCast's business models since they launched. What I worried about was that the Court's ruling would have a chilling effect on innovative new technologies -- the spillover effect. It remains to be seen whether those fears are founded or not.

For now, it strikes me that our iPods and TiVos are safe, and that Ourmedia.org will be unaffected by the ruling.

Here's a sampling of some highlights from today's news:

• The SCOTUS ruling itself, in PDF format.

• AP overview: Court: File-Sharing Services May Be Sued.

• BBC News: File-sharing suffers major defeat. "If I'm running the RIAA [Recording Industry Association of America], you're going to see lawsuits coming down like a Texas hailstorm. Don't be surprised to see an unusually large number filed immediately."

• Gigi Sohn, president of Public Knowledge:

Today's Court decision in the Grokster case underscores a principle Public Knowledge has long promoted -- punish infringers, not technology. ...

What this means is, to the extent that providers of P2P technology do not intentionally encourage infringement, they are exempt from secondary liability under our copyright law. The Court also acknowledged, importantly, that there are lawful uses for peer-to-peer technology, including distribution of electronic files 'by universities, government agencies, corporations, and libraries, among others.'

The Court is clearly aware that any technology-based rule would have chilled technological innovation. That is why their decision today re-emphasized and preserved the core principle of Sony v. Universal City Studios -- that technology alone can't be the basis of copyright liability -- and focused clearly and unambiguously on whether defendants engaged in intentional acts of encouraging infringement. The Court held expressly that liability for providing a technological tool such as the Grokster file-sharing client depends on 'clear expression or other affirmative steps taken to foster infringement.' What this means is, in the absence of such clear expression or other affirmative acts fostering infringement, a company that provides peer-to-peer technology is not going to be secondarily liable under the Copyright Act.

• Fred von Lohmann at EFF's Deep Links: Supreme Court Reverses Grokster, Endangers Innovation. "Today the Supreme Court has unleashed a new era of legal uncertainty on America's innovators. The newly announced inducement theory of copyright liability will fuel a new generation of entertainment industry lawsuits against technology companies. Perhaps more important, the threat of legal costs may lead technology companies to modify their products to please Hollywood instead of consumers."

• The EFF's full press release on Grokster.

• The Wall Street Journal is hosting a Grokster roundtable with Denise Howell, James Burger and John Palfrey, among others. The discussion is open to the public. Denise: "the test is not going to be that mere knowledge of infringing activities by users will trigger liability." More Denise: "BitTorrent proponents will be pleased with Justice Souter's description of P2P networks, including recognition of their "benefits in security, cost, and efficiency," and acknowledgement that they 'are employed to store and distribute electronic files by universities, government agencies, corporations, and libraries, among others.' "

• Slashdot: Your Rights Online: Supreme Court Rules against Grokster.

• Copyfight: Lots here.

• Ernest Miller: Here too. I'll be guest-blogging later today and tomorrow.

• Randy Picker: The Lurking Design Issue in Grokster. "A critical question for new products is what kind of design obligations come with innovation. ... I think that we very well may conclude that network products require a different set of design obligations then we saw for offline products such as the VCR." And: "The opinion of the Court supplements Sony’s substantial noninfringing use test by importing patent law’s active inducement test."

• Charlie Petit at SCOTUSblog: "[The court] noted that Grokster isn't about the technology: It's about the business plan. Justice Souter appears to have taken great care to avoid criticizing the underlying technology, or even discussing it more than absolutely necessary to put the case in context."

• Lior Strahilevitz at SCOTUSblog makes a very interesting argument, which I second: "It may be that the result of Grokster is a legal landscape more receptive to peer-to-peer than a world in which Grokster wins in the Court and then Congress steps into the fold with new legislation. By losing the battle, file-swappers perhaps forestalled total defeat in the war."

• Doug Lichtman at SCOTUSblog: Hollow Victory in Grokster. "MGM won on paper today, but my first reading of the opinion makes me wonder whether the victory will have any bite outside of this specific litigation. Intent-based standards, after all, are among the easiest to avoid. Just keep your message clear -- tell everyone that your technology is designed to facilitate only authorized exchange -- and you have no risk of accountability."

• Edward Felten at Freedom to Tinker: Business Model as Evidence of Intent.

Later:

Public Knowledge president Gigi Sohn answers your questions about today's ruling at the Washington Post.

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