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A meaningless win?

By Scott Bradner

Early in the morning of July 4th the US National Aeronautics and Space Administration (NASA) purposefully crashed a 820 pound chunk of metal into a comet at about 23,000 miles an hour. The flight of the Deep Impact probe started back in early January. The third of a billion dollar mission was designed to see what a comet is made of. Just a week earlier the US Supreme Court had a chance to strike the recording industry hard enough to see what they are made of but struck a glancing blow instead. But maybe, over the next few years, the 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. I've written about it twice in the past. Once in May 2003 when the original summary judgment that said that Grokster was not liable for copyright violations was announced (http://www.networkworld.com/columnists/2003/0505bradner.html) then again about a year later when an Appeals Court upheld the original decision (http://www.networkworld.com/columnists/2004/083004bradner.html). Now the Supreme Court has spoken a non-final word (www.supremecourtus.gov/opinions/04pdf/04-480.pdf). They said that Grokster could be liable for the copyright violations of its users 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 Supreme Court would uphold the original summary judgment. Not because I'm anti copyright, as an author and a long time observer of the copyright in the Internet age tensions (see, for example http://www.networkworld.com/columnists/2000/0207bradner.html) I do support the original purpose of copyright as articulated in Section 8 Clause 8 of the U.S. Constitution. (http://www.house.gov/Constitution/Constitution.html) 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 that 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 Supreme Court decision may turn out to be as meaningless as the former RIAA head Hilary Rosen asserts it will in a interview published in the July 4th New York Times. 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 may also change significantly. The US Register of Copyrights Marybeth Peters has proposed significant changes to basic copyright law in the US. (http://www.copyright.gov/docs/regstat062105.html) Maybe we will get a Deep Impact on the industry after all.

disclaimer: Harvard was involved in Deep Impact (http://cfa-www.harvard.edu/press/pr0522.html) but I know of no university opinion on the impact of the Grockster decision.