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More grokking of Grokster

Tyler Ochoa is a law professor at Santa Clara University who specializes in copyright and other IP-related issues. He gave a lunchtime talk this week to bring interested students up to speed on what happened in the Grokster decision, as well as some of the background that made the case such a big deal by the time it got to the Supreme Court (abbreviated to "S.Ct." for the rest of the post).

It was a really good lecture, and if there's anything factually wrong below, blame my notes rather than Prof. Ochoa's talk:

Tyler Ochoa
P2P file sharing and the Grokster case

9/13/2005 -- 12:00 - 1:00 PM

5 exclusive rights involved in copyright

The exclusive right to reproduce works
The exclusive right to derive new works
The exclusive right to distribute copies of the work to the public
The exclusive right of public performance (except for sound recordings -- there's no right of public performance in the live or analog realm, but there is a right of p.p. for digital media)
The exclusive right of public display of a work

Vicarious liability - out of tort law: if you have the right to control what someone else is doing and if they infringe and you derive some financial benefit from their infringing, you can be liable

Contributory liability - if you know someone is infringing and you give material assistance to the infringement, you can be liable

Sony Betamax: Universal & Disney sued Sony for copyright infringement; Sony's defense - the VCR has "substantial non-infringing uses"; court agreed (in a 5-4 decision)
Napster: tried to use the Sony defense and failed; Napster contributed towards infringing; original injunction to block file names; injunction modified by court to block the files themselves; Napster couldn't figure out how to do this effectively and went under before re-inventing themselves on a subscription-based model.
Grokster/Morpheus/etc.: different in that there's no centralized index (a floating index; if there's a problem, it's endemic to the software, which would make the distribution of the software illegal)

Grokster:
The S.Ct. ducked Sony in the Grokster decision
Bader-Ginsburg concurrence - Sony doesn't apply; non-infringing uses are only anecdotal
Breyer concurrence - Sony can/does apply
Majority opinion - doesn't really emphasize Sony

Grokster tried to concede bad acts in the past but argued that they were clean now and would remain so in the future.

Inducement doctrine

What the court did: look beyond the capabilities of the product to the intent of the producer
3 types of "clear expression" of intent:
1) The companies all wanted to be the next Napster (but what does it mean to want to be the next Napster? to be the new source of illegal filesharing? to be as popular? in some ways, isn't iTunes "the next Napster"?)
2) The companies did not take any steps to prevent infringement (which is very different from "affirmative steps to induce infringement") - very troublesome: may encourage companies to implement flags/filtering/DRM as a CYA move, notwithstanding Footnote 12
3) Problematic business model -- financial incentive to encourage infringement

You don't know if something is infringing until it's litigated

US Code § 108
No liability for selling products (single-use products, according to the Audio Home Recording Act) that allow for personal home recording; does not apply to computer