This story appeared on Network World at

http://www.networkworld.com/columnists/2005/071105bradner.html

'Net Insider

The Grokster decision: A meaningless win?

By Scott Bradner, Network World, 07/11/05

Scott Bradner

Early in the morning of July 4, NASA purposefully crashed an 820-pound chunk of metal into a comet at about 23,000 mph. The flight of the Deep Impact probe, which started in early January as the third part of a billion-dollar mission, was designed to see what makes up a comet.

Just a week earlier, the Supreme Court had a chance to strike the recording industry hard enough to see what it is made of, but struck a glancing blow instead. Maybe, over the next few years, its Grokster decision will be seen as a meaningless cul-de-sac.

The Grokster saga has taken a lot longer than the Deep Impact mission and is not yet over. In May 2003, I wrote about the original summary judgment that said Grokster was not liable for copyright violations, then again about a year later when an Appeals Court upheld the original decision.

Now the Supreme Court has spoken a non-final word, deciding that Grokster could be liable for the copyright violations of its users. That is, if Grokster distributed software "with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, going beyond mere distribution with knowledge of third-party action."

The Court found enough evidence of fostering infringement to overturn the original summary judgment and send the case back for a trial on the merits.

I had hoped that the court would uphold the original judgment. Not because I'm anti copyright: as an author and a longtime observer of tensions over copyright in the Internet age, I support the original purpose of copyright as articulated in Section 8, Clause 8 of the U.S. Constitution.

I am not a supporter of the endless extensions of copyright that have been a feature of our government for the lobbyists for far too long. Nor am I a supporter of the entertainment industry's myopic focus on shooting messengers rather than developing new messages. I was hoping the Supreme Court would strike a blow to the entertainment industry that would have forced it to wake up and actually do some thinking about ways to provide services to its customers - not just serve papers on them.

But the court decision might be as meaningless as Hilary Rosen, former head of the Recording Industry Association of America, asserts it will in an interview published in The New York Times on July 4.

The decision, and the forthcoming court case (assuming Grokster does not just fold its tent and fade away, leaving its software alive, spreading and likely unstoppable), are far from the last words on this topic. The lawsuits against new technology will continue, at least until some clarity is developed over what steps constitute fostering infringement. The sharing technology will also continue, and if the next developer very carefully does nothing overt to promote illegal sharing, the software will not violate the Supreme Court's guidelines.

The legal playground might also change significantly. Marybeth Peters, the U.S. Register of Copyrights, has proposed significant changes to basic copyright law. Maybe we will get a Deep Impact on the industry after all.

Disclaimer: Harvard was involved in Deep Impact, but I know of no university opinion on the impact of the Grokster decision.