The voice of reason (one time only)
Posted by aogMonday, 27 June 2005 at 13:50 TrackBack Ping URL

I have to agree with the US Supreme Court and SCOTUSBlog on the Grokster case. My reading is that the SCOTUS has, for once, outlined clear and reasonable law in this area. Despite what the doom cryers and RIAA boosters claim, it seems to me that this decision won’t make a whole lot of difference in the long run.

The essence of the decision is that Grokster actively and primarily promoted the software as something to be used in an illegal activity1. So, as one commentor notes, BitTorrent would seem to be fine, as the primary uses promoted by the builders are not illegal. For some reason, many angry people seem to think that the SCOTUS ruled that if technology can be used for illegal acts, it should be banned, but that’s not at all how I read the decision. Here’s a key quote:

Respondents are not merely passive recipients of information about infringement. The record is replete with evidence that when they began to distribute their free software, each of them clearly voiced the objective that recipients use the software to download copyrighted works and took active steps to encourage infringement. [emphasis added]

Note that the SCOTUS is saying that even knowning that your technology is primarily used for illegal copying isn’t enough to generate liability, it requires active steps and a clear voicing in favor of illegal copying. I can’t see that as much of a difficult thing to avoid. Because of this, I don’t see this as much of a win for the RIAA and its fellow-travelers. It just means that the Grokster replacement will be put out by anonymous and silent authors.

1 We can debate whether copyright law makes sense, but like immigration laws they are the law of the land and the USSC is properly not dealing with the legislative issue of whether the laws “work” in the real world.