Reluctantly siding with Grokster

In his post about the MGM v. Grokster case, Christopher Baus asks "Where's Nick Bradbury?" It's a fair question given my stance on software piracy, but as I've written before, I believe it's a mistake to hold developers of P2P products liable for the copyright infringement of their users.

As you can imagine, that's not an easy position for me to take since 100% of my income comes from software sales. My work is pirated left and right on file-sharing networks, so I'd probably turn a blind eye if I thought this case would affect only the current swarm of spyware-infested P2P apps that were so obviously designed for "sharing" copyrighted material. But that's the problem. This case doesn't just affect these piracy tools. It could affect technologies like BitTorrent which are widely used for piracy, yet have legitimate uses as well.

And I have to be concerned about how this case could impact small developers such as myself by burdening us with legal concerns. Mark Cuban hit upon this in his blog recently:

"If Grokster loses, technological innovation might not die, but it will have such a significant price tag associated with it, it will be the domain of the big corporations only."

Look at it this way: if people use FeedDemon to subscribe to warez feeds and download copyrighted material, should my company be held liable? The idea seems ridiculous given that I obviously didn't design FeedDemon for this purpose, but this possibility won't seem as far-fetched if MGM wins this case.

As an aside, I look at the current crop of file-sharing software and see an opportunity for someone. As the success of iTunes has shown, there are millions of customers who are willing to dump file-sharing tools in favor of a more legitimate solution. I'd love to see a tool which enabled purchasing software as easily as you can purchase music on iTunes (look at RealArcade for a specialized example of this). These days I buy far more music than I did before I switched to iTunes, and the primary reason for this is that it's so easy. If instead of simply clicking "Buy Now" to purchase music I had to type in my contact information, credit card details, etc., with every purchase, I'd buy a fraction of the music I currently do. Why not sell software the same way?

Comments

[Christopher Baus]

Nick,

Thanks for the link. I also support grokster in this case. Although I do have some concerns, also as somebody that pays the mortgage with software sales.

On iTunes. I totally agree. I made a similar argument here: http://www.baus.net/why-drm-is-good

DRM in and of itself isn't evil. Especially if it provides a package deal that all the involved parties (users, content owners, and distributors) can agree to. The fact that it is integrated and easy to use is enough to push many toward paid services.

~christopher

[Peter]

I agree. Almost anything can be used for an illegal or unintended purpose. I could stab you with a fork. Should we outlaw forks or make fork manufacturers liable for that?
Until the point where the illegal uses are far and away overwhelming the legitimate uses, manufacturers should be free to produce and distribute their products free of users' liabilities.

The only reason MGM is suing them is because it's easier than going after every individual user who is infringing. So they try a blanket approach which punishes everyone.

[Rob]

One argument I've heard put forward is "Why dont we also ban ladders, as ladders are used by burglars to commit crimes"

The difference between P2P apps and Ladders (I never thought that would be a sentence I would write...) are that ladders have a vast number of different uses and the vast majority of them are lawful. P2P apps have few specific uses, and the magority of the use they get is to download illegal files.

[John Allsopp]

Rob,

"apps have few specific uses, and the magority of the use they get is to download illegal files"

Well, the Plaintiffs in this case would have you believe this, but I say nonsense. Exactly the same arguments were presented in the Betamax case.

But in essence the argument is not about how things are or may be used, it is about whether the developer of a technology should be held responsible for any use of that technology. I'm not saying there are no cases in which they shouldn't, but it is a very slippery slope.

In Betamax, the US Supreme Court decided that the test is whether there is a "substantial, non infringing use" of the technology. That is, are there non trivial legal uses for the technology. In the case of P2P this is clearly the case. Skype, for instance.

This is perhaps the most important judicial decision that the technology industry, and the content creation industries have ever faced.

P2P technologies use TCP/IP to work right? So, if P2P is illegal, why not TCP/IP (aka "the internet")?
And if the internet is illegal, what about the phone system, and other infrastrucutre the net runs over?

A very slippery slope.

john

[Nick Bradbury]

John, I think for the most part we're in agreement here. However, unlike the EFF, I don't think the Betamax case is completely analogous to this situation.

In the Betamax case, the Supreme Court apparently believed that the most common use for VCRs was recording TV shows for later playback (time-shifting), which is covered by fair use. Most P2P apps were obviously not designed for making fair use copies, so the situation is quite different.

[Giacomo]

Nick, recording TV shows is considered "fair use" mainly since Betamax, so you have some kind of a chicken/egg problem here :)
This case is not about password-crackers or warez-specialized applications, it's about a network infrastructure for data communication. The argument has been made difficult by the MGM legal team pushing generalizations that are too broad, anxiously hoping to fill the "gaps" left by Napster. MGM needs a big slap to remind the content industry that they don't control technology development (no one should, btw), and the Supremes will probably do it. Hopefully the media moguls will prepare the next case in a better way (oh yes, there will be another one, and another one, and another one...) and we'll all be happier.

[Patrick Schriner]

A lot of Linux distributions are available via Bittorrent as well. I guess it saves a lot of money on the distributor´s side, and makes for faster downloads as well. I love to see a 700+ MB file flying in at maximum speed.

[Badman]

I'll start buying music off iTunes when they decide to start selling me MP3s that I can use any way I want to. DRM makes the assumption that everyone is a criminal - and it doesn't even reduce piracy! It's idiotic.

[Philip]

A person illegally shots a guy on the street with an illegally owned gun.

Should the manufatures be responsiable? They did after all make the guns which allowed the person to kill another person

Same situation, different context. You can even manuliplate that to what ever context you use for File sharing.

My stance is don't go after the manufactures, go after the users.