Brian's Brain

In late June, the US Supreme Court announced its unanimous decision on MGM's appeal of a lower court ruling that had exonerated P2P software providers Grokster and co-defendent StreamCast Networks. It ruled in favour of MGM, and sent the case back to the lower court for revisiting in light of the Supreme Court's clarification. I've intentionally waited almost two months to share my thoughts on this momentous legal precedent, allowing the initial emotions that might distort my opinions to dissipate and, in the process, collecting and examining others' opinions. Unfortunately, my take on the decision now isn't substantially different than what I initially concluded on June 27^th. Technology innovation has just been sacked. Hard.

First, though, I'd like to commend the Supreme Court on its wisdom. Confused? Hang with me. The Justices succinctly stated that P2P software, or more generally any means by which computer users can swap and share files, is not inherently illegal. Their beef with Grokster is summarized in the following statement from the ruling; "One who distributes a device with the object of promoting its use to infringe copyright ... is liable for the resulting acts of infringement by third parties using the device, regardless of the device's lawful uses." In other words, they ruled that Grokster had not taken strong-enough steps to prevent copyright infringement by its software's users. More to the point, they found clear documented evidence that Grokster officials were aware that copyright infringement was taking place, and in fact were surreptitiously condoning and even encouraging it.

I agree. That's very, very wrong, at least according to current U.S. copyright law. But the vaguely-worded "with the object of promoting its use to infringe copyright" statement leaves the door wide open to future legal abuse by big companies with big budgets and huge teams of lawyers, against small, poorly-funded startups with great technology ideas that threaten existing business models. Let's go back to, for example, the late-90s RIAA versus Diamond Multimedia case involving the Rio PMP300 digital audio player. Would Diamond have survived the legal hurricane tossed its way by the well-financed Recording Industry Association of America, in the post-Grokster decision world? Perhaps more directly to the point.....does anyone else want to guess what the RIAA, and the U.S. courts, would think now about Apple's 2001 'Rip. Mix. Burn.' campaign? And is Bram Cohen a legal target for inflammatory words he posted to his website in 1999, two years before he began the development of BitTorrent?

Don't forget; a big company or consortium doesn't, at the end of the day, need to triumph in the courts to achieve its objectives. All it needs to do is drag out the legal proceedings to the point where it exhausts the financial resources of its smaller competitor. Look, for example, at what Creative Labs did to Aureal. Plenty of other past examples exist, of course. And, I fear, many many more will follow.

More reading, if you're interested, from my Outlook email and RSS feed archive (which I can now cull!):

• Ars Technica
• Computerworld columnist Mark Hayes
• Current Analysis
• Dan Gillmor
• Engadget
• Network World columnists Mark Gibbs, Paul McNamara and Scott Bradner
• Robert Scoble
• The Register
• Wired