On June 27, the Supreme Court issued its decision in Grokster vs. MGM, a lawsuit over the legality of peer-to-peer networking. The decision creates a new form of copyright liability that goes to the heart of what MAKE is all about: making cool stuff out of other stuff and sharing it with the world.
The Grokster case was about “secondary” oblivion, found guilty on the grounds that they’d had liability. If you make a tool that allows your users the ability to control their users, so they couldn’t find to infringe on copyrights — like a camera, pencil, refuge in the Betamax defense. Grokster and the VCR, or the internet — should you be held liable other post-Napster P2P companies set out to deploy for their actions? The granddaddy of secondary P2P systems that lacked this control: systems built liability cases was the Betamax decision, which was on technology like Gnutella, where the people who handed down in 1984, when the studios argued that deploy the software have no way of knowing what the VCR should be made illegal because it would users are downloading or searching for.
Napsterize the movies that were aired on broadcast But the Supremes found that since the architects TV (yes, they claimed this!). of these systems had hoped that their users would
The court then found that the VCR was not illegal, download infringing songs — because they targeted nor was any technology “capable of sustaining a ex-Napster users — they were guilty of inducing substantial non-infringing use.” That is, if your tech- infringement. nology could be used for non-infringing purposes The court saw their intention to attract
(say, recording the copyright-free congressional 70,000,000 Napster users as evidence that they wrangles on C-SPAN), then it was legal to build it. had intended to induce the infringement — even Your customers might still be on the hook if they though Napster itself has since been bought out by got caught making infringing copies, but it wasn’t record labels who are marketing a new service (also your responsibility. called Napster) to those same users.
Betamax stood us in good stead for more than If you’re a maker, this is scary news. With every 20 years. The knowledge that any technology that word you utter, every email you write, every IM you could be used for good was legal to build gave mak- send, you’ve got to make sure you never breathe ers the certainty to develop, capitalize, and sell or a hint of any expectation that your users might distribute all kinds of tools from printers and scan- infringe copyright. Apple couldn’t get away with ners to Microsoft Outlook to the Google Toolbar. “Rip, Mix, Burn” under this standard.
But as the majority of internet users seek an end- In 1984, the Supremes’ Betamax decision gave run around the entertainment industry’s price fix- every tinkerer and garage startup a gift: an easy-to-ing, limited back catalogs, and antiquated delivery understand standard for which all kinds of products mechanisms by means of P2P systems, the enter- are lawful in the marketplace. That gift paid a divi-tainment companies have tried to create a new kind dend: 20 years of innovation, encompassing every-of secondary liability — for inducing your users to thing from the PC revolution to the internet. This infringe copyright. year, they took that gift away with the Grokster deci-
This is thoughtcrime. If Alice and Bob both build sion: an impossible-to-gauge standard that makes identical VCRs, but Alice advertises that you can use your technologies’ uses secondary to your state of her VCR to duplicate copyrighted movies while Bob mind when you sat down at your workbench. merely winks knowingly and lays his finger along- side his nose, Alice faces liability and Bob doesn’t. Cory Doctorow ( craphound.com) works for the Electronic Grokster and its codefendants were accused of Frontier Foundation ( eff.org), co-edits boingboing.net, and this kind of thoughtcrime. Napster was sued into has written several novels.
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