The Internet world is abuzz with talk about today’s Supreme Court decision in the Grokster case, as it was with the Napster case before it. “Studios Win Big in Grokster Case,” reads one headline; “Hollywood Wins Internet Piracy Battle,” says another. “Court Sides with Entertainment Biz in Grokster Case,” reads yet a third.
And in a rather disgusting display of self-congratulatory puffery, the RIAA has issued a statement saying that “With this unanimous decision, the Supreme Court has addressed a significant threat to the U.S. economy and moved to protect the livelihoods of the more than 11 million Americans employed by the copyright industries.”
Of course, probably half of those “11 million Americans employed by the copyright industries” are employed by the RIAA themselves, working to track down those hardened music pirates – the scourge of the Internet – you know, the twelve-year-olds. And what a surprise to learn that the significant threat to our U.S. economy is not events in the Middle East, the entry of cheap and efficient Asian high tech components to the world market, or even the U.S.’ own global financial entanglements, but file sharing!
Showing only slightly more restraint and tact, Dan Glickman of the MPAA said “Protecting intellectual property rights and aggressively combating copyright theft will keep an engine of economic growth and job creation thriving; promote innovation; strengthen legitimate businesses that unite technology and content in innovative and legal ways; and ensure a future of quality and choice for consumers in the United States and around the world.â€?
Gag Aunty with an MP3. Well, at least Glickman admits that combating copyright theft will keep job creation thriving.
But at the end of the day, what is the new Grokster ruling really about? Does it really herald the end of peer-to-peer (P2P) file sharing? Is it really illegal to share files? Are companies like Grokster, Streamcast, and Napster now outlawed?
No, of course not, although you would think so from all the headlines, wouldn’t you?
So let Aunty deconstruct this for you. And you can take this to the bank; Aunty does, after all, have credentials in legal deconstruction.
His Honour Justice Souter, writing the opinion, summed it up when when he wrote in today’s ruling: “There is no evidence that either company (Grokster or StreamCast) made an effort to filter copyrighted material from users’ downloads or otherwise impede the sharing of copyrighted files. Each company showed itself to be aiming to satisfy a known source of demand for copyright infringement, the market comprising former Napster users.”
Ok, got that? Here is the critical portion of today’s decision: “Each company showed itself to be aiming to satisfy a known source of demand for copyright infringement…”.
Here’s what today’s ruling really says:
It’s not good enough for your peer-to-peer or other filesharing network to have some other legal, legitimate use. That was the basis for the much bally-hooed Sony Betamax decision. In the Sony Betamax decision, years ago, when the entertainment industry tried to argue that VCRs could infringe on copyrights by recording copyrighted movies and such, the Court said “no, they have other legitimate uses” (such as recording home movies).
But that’s not enough. It’s necessary that your system have some other legal, legitimate use, as in the Sony Betamax case, but it’s not sufficient.
It’s also necessary that the primary reason for your existence, your raison d’etre – you know, you’re primary business model – not be to help people download infringing, illegal, copyrighted material.
You see, the court did not hold today that peer-to-peer file sharing is illegal. They held that going out of your way to facilitate an illegal activity – the sharing of illegal files (copyright infringing files) – is illegal.
It’s still legal to download legal files, and it’s still legal to share them. And it’s even still legal to help people do that.
The secret is to make sure that you can honestly say “we facilitate the sharing of legitimate, non-copyright-protected files, and do not facilitate the illegal downloading of copyrighted material.” And that you can pass the “straight face test” when you say it.