Saturday, July 02, 2005

MGM v. Grokster Lowdown

Kids, since I've just wasted the last hour reading about Grokster instead of learning the difference between 5th amendment right to counsel vs. 6th amendment right to counsel, or the difference between Federal and Oregon rules regarding expert testimony, I thought I'd share what I've learned.

MGM v. Grokster opinion can be found here. But, for those of you with little time, NYU law school professor, Siva Vaidhyanathan, has a very accessible piece on Salon that is worth the read.

The basic gist is that Souter's opinion struggles to keep the Sony Betamax opinion alive by borrowing an "inducement" theory from patent law. That is, the court majority (although a concurring opinion by Ginsburg makes this kind of cloudy to me) says that substantial non-infringing uses are still ok, but if you induce infringement either through advertisement or some other method, then you're contributorily liable. So, basically, as is his wont, Souter once again issued a completely unintelligible opinion.

Siva Vaidhyanathan points out, the way the opinion is worded, there is ambiguity as to whether Apple's Rip, Mix, Burn advertisement would constitute inducement. Also, when you look at old Sony Betamax advertisements, they seem to be inducing infringement too. He also points out that since the entire internet is one big peer to peer file sharing network, Google could conceivably find itself in trouble.

So, although Sony may technically still be intact, future cases will undoubtedly whittle it away as lower courts grapple with what exactly constitutes inducement. In fact, the most devastating impact of this opinion may not be the holding itself, but the economic power such an ambiguous opinion has given to the RIAA, MPAA and the like to pursue lawsuits against small innovators. Case in point: many have been speculating as to whether BitTorrent inventor Bram Cohen may be next. Seems that five years ago he wrote a parody cypherpunk manifesto in which he stated he wrote programs to commit digital piracy. Is this inducement under Grokster? Even if it isn't, it may be a legitimate enough question to prompt a lawsuit. Guess we'll find out.


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