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• Grokster : A threat to innovation?
Grokster : A threat to innovation?
St. Louis Post-Dispatch — July 12, 2005
So, it’s okay to distribute software that can be used for copyright infringement, so long as you don’t promote it as such. Just wink and nod, and you might be all right – after a protracted legal fight.
That’s one way to look at the Supreme Court’s effort to split the baby in the Grokster file-sharing case.
Another message is this: If you’re a software developer, beware. Develop an Internet tool that can be used to duplicate copyrighted materials – even if it has many legal uses – and expect a visit from plaintiffs’ lawyers. Since lawsuits are expensive, you might want to drop the whole thing.
The high court might have been wiser had it stayed out of the Grokster case. After all, the big recording companies were already able to use lawsuits to scare the bejabbers out of teenage music fans tempted to download copyrighted music for free. The nation didn’t need a court decision that could discourage technological innovation.
At issue are companies, such as Grokster, that blatantly encourage copyright infringement. Grokster distributes free software that allows users to locate recordings and download them directly from other users’ computers. The vast majority of those tunes are copyrighted. Grokster makes its money by selling advertising directed at its users.
Until now, record companies have had to be content with tracking down and suing the individual downloaders. They’ve sued thousands so far, ballyhooing the results with press releases.
Naturally, the record companies also want to sue the pants off Grokster, blaming it and its ilk for a drop in CD sales. The problem is that there are lots of legitimate uses for technology that can find and move information on the Internet. Sic lawyers on software innovators, and you’ll get less innovation. America could be the poorer for that.
Justice David H. Souter, writing for the unanimous court, recognized the tension. He tried to steer a middle road, drawing a distinction between the technology and the way it’s promoted. The technology itself isn’t the problem; the promotion is. Copyright holders may sue companies that distribute a “device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement.”
So, if Grokster advertised itself as a “great way to find public-domain recordings of 19th century Appalachian fiddle tunes,” that might be fine, even if users just happened to come across the latest hit from The Killers.
The ruling will likely be of limited help to record companies. The Internet is international, and file-sharing services can hide anywhere in the world. Kazaa, for instance, is registered in Vanuatu, a speck of an island nation in the South Pacific.
But the Supreme Court decision could strike the fear of lawsuits into inventors looking for ways to make the Internet more useful to the world.
Grokster is an ugly poster child for innovation. But if society must choose between reducing the riches of rock stars and limiting innovation on the Internet, innovation should win out.
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