Friday, July 22, 2005

Are File Sharing Networks Responsible For What Users Do With Them?

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 Are File Sharing Networks Responsible For What Users Do With Them?

A few weeks ago, the U.S. Supreme Court handed down a decision in the case of MGM Studios et al vs. Grokster, Ltd and Streamcast Networks. The other plaintiffs represented by the "et al" included the Recording Industry Association of America (RIAA) and the National Music Publishers' Association of America. In summary, the Court ruled that the Hollywood movie studios and record companies could sue the peer-to-peer file-sharing service because its users were illegally trading copyrighted works over their network. The studios had appealed after losing in the Ninth Circuit Court.

On the face of it, this decision is troubling. It seems to set a dangerous precedent, akin to the efforts of gun control advocates to sue firearms manufacturers for the crimes committed with their products. Our argument against that theory was that you would also have to allow lawsuits against the makers of kitchen knives that were used to commit murder, or pieces of lumber that were used to hit someone over the head. Our concern with this decision is similar.

If a software vendor is liable for what its users do with the software, does that mean Microsoft can be sued because a crooked CEO uses Excel to create a spreadsheet with "doctored" numbers, or Eudora can be sued if a terrorist uses its program to send e-mail to a co-conspirator finalizing plans to blow up a building, or Mozilla can be sued if a pedophile uses its browser to download nasty pictures of children?

We've been through this before, way back when the Video Cassette Recorder came on the scene. The movie industry then wanted to hold Sony, makers of the betamax, responsible for movies pirated with its equipment. The Court at that time said no. So what's different about this case?

According to Justice Souter, who wrote the decision, the file sharing networks intended and encouraged the use of their software for illegal purposes, unlike the VCR manufacturers, who marketed their wares to be used for legitimate "time shifting" of TV programs and playing of rented or purchased tapes.

Critics of the Grokster decision say the Court did not clearly define what constitutes "inducement" of copyright infringement, and argue that file sharing technology is used for legal sharing as well as illegal - for instance, many unknown musicians create their own music and make it available over the P2P networks to get exposure.

The Court's focus on intent is a valid one under the tradition of law; the "culpable mental state" of a defendant is one of the necessary elements that the prosecution must prove to convict someone of a criminal offense. But the question of what "inducement" means is an important one, too. It's a concept that comes up often in law enforcement, in relation to police "entrapment." Courts have consistently ruled that merely providing an opportunity for someone to commit a crime (for example, leaving an abandoned car on the road and watching it to catch thieves who are "tempted" to steal the battery, stereo or entire vehicle) does not constitute entrapment or inducement. To rise to the level of entrapment, police must actually try to persuade the person to commit the crime.

So, do the file sharing networks try to persuade their users to download movies and music in violation of copyright laws? That's the real question (and one to which the Court answered "yes"). A look at the front page of Grokster's Web site says such things as "publish and share your music and movies with the world" (ah, but are they talking about your original songs and home videos or those you "ripped"?) and "Share any type of file, anytime." I didn't find anything, glancing through their FAQ and other pages on the site, that I felt rose to the level of encouraging or trying to persuade people to download copyrighted material, but I admit I didn't peruse the whole site nor have I read their newsletter.

What do you think? Was the Supreme Court decision right on? Should copyright holders be able to go after those who provide the technology that's used to steal their intellectual property? Or is this going too far? Should we instead hold only the users accountable for how they choose to use that technology? Let us know what you think at


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