Monday, June 27, 2005

MPAA Wins, but Do We Really Lose?

This morning (June 27, 2005) the Supreme Court unanimously ruled (9-0) in favor of the MPAA in the MPAA vs. Grokster. Ltd. and Streamcast Networks case. After reading the Supreme Court brief, I'm left a little stunned, but not completely distraught.

The overall question was under what circumstances the distributor of a product that was capable of both lawful and unlawful uses could be held liable for acts of copyright infringement done by third party users. From what I can tell, the Supreme Court has come down in favor of both copyright protection and file sharing technology. The question of liability is not going to be the technology, but the intent of those providing the technology.

The brief sites several instances that clearly show that Streamcast knew that its target audience would be using their P2P software to share copyrighted material illegally. What concerns me is that the brief seems to hold Grokster liable because they were going after old Napster customers.

Essentially, Grokster is being held liable because the audience they were marketing to initially used a separate product for illegal purposes, and therefore their intent was to promote their product for illegal purposes. There may be other evidence against Grokster not mentioned in the brief, I don't know. But that argument's a bit weak for me. It's guilt by association.

I don't think this is the end of the arguments, or the lawsuits, though. In theory, I agree with the Supreme Court. I'm just not sure what this is going to mean in practice. The MPAA and the RIAA have traditionally used lawsuits, and the threat of lawsuits, as a scare tactic to force what they want, over what is actually legal.

How many technology developers are going to stay excited about P2P file sharing technology (including Bit-torrent) when even working in it could now backfire for them? Could a technology provider be sued into the ground, just because Hollywood (or Nashville) is afraid of a new technology that could, or could not, be used for copyright infringement?

I don't think Supreme Court decision is all that . . . well . . . decisive. It alludes to intent, but then also leaves a loophole for how much evidence you need to determine intent. How is this going to play out in the thousands of court cases that are bound to be tried in response to this ruling? I haven't a clue. We'll just have to wait and see.

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