Grokking Grokster

When I heard about the Grokster decision this morning (in which the Supremes decided unanimously in favor of MGM, et. al. in its suit against Grokster, et. al.), I knew many, in the blogosphere as well as the mass media, would play the story as a victory by Hollywood over Technology. That may be right, but to what does the metaphor blind us? Take away the war and sports framing, and what have you got?

Justice Souter, writing for the entirety of the Court, begins,

The question is under what circumstances the distributor of a product capable of both lawful and unlawful use is liable for acts of copyright infringement by third parties using the product. We hold that one who distributes 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, is liable for the resulting acts of infringement by third parties.

The emphasis is mine.

IANAL, etc.; but this looks like it's about intent, and the damages that follow. Maybe it's not as OK as Mike Spenis contends in A Gentle View of Grokster, but maybe he's right that

If Grokster (or future file-sharing technologies) are not promoted as tools for stealing content, and don't go out of their way to invite content theft, then they are protected by this ruling. This is in addition to the earlier protections provided by the Sony case. We have more protections now than we did before.

The emphases are his.

I'm not so sure about the protections provided by the Sony case. Read the decision (second link from the top) for more on that one. Pay close attention to the disagreements between Justices Ginsberg and Breyer regarding Sony. (She wants to change it; he doesn't.)

Breyer scares me less. But not by much.

One of his points:

The third question — whether a positive copyright impact would outweigh any technology-related loss — I find the most difficult of the three. I do not doubt that a more intrusive Sony test would generally provide greater revnue security for copyright holders. But it is harder to conclude that the gains on the copyright swings would exceed the losses on the technology roundabouts.

For one thing, the law disfavors equating the two different kinds of gain and loss; rather, it leans in favor of protecting technology.

Really? What about Eldred?

He goes on,

As Sony itself makes clear, the producer of a technology which permits unlawful copying does not himself engage in unlawful copying — a fact that makes the attachment of copyright liability to the creation, production, or distribution of the technology an exceptional thing...

Later he says,

Will an unmodified Sony lead to a significant diminution in the amount or quality of creative work produced? Since copyright's basic objective is creation and its revenue objectives but a means to that end, this is the underlying copyright question. See Twentieth Century Music Corp. v. Aiken, 422 U. S. 151, 156 (1975) ('Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts'). And its answer is far from clear.

I kinda like where he seems to be going until he gets to this:

Further, copyright holders may develop new technological devices that will help curb unlawful infringement. Some new technology, called "digital 'watermarking'" and "digital fingerprint[ing]," can encode within the file information about the author and the copyright scope and date, which "fingerprints" can help to expose infringers.

And I'm thinking, Aw damn...

The biggest unintended consequence of legitimizing those technologies (which this decision just did) is to force American technology companies A) to filter every innovation through legal departments now made paranoid about "inducement"; and B) to design-in exactly these kinds of value-subtracting technologies, forcing customers to buy competing products from other countries where our new pro-Hollywood laws don't apply.

As Cory Doctorow puts it here,

...you can be sure that the in-house counsel at a technology company will err on the side of caution—as will the investors in every potential new garage start-up. Such seemingly innocuous statements as "E-mail larger attachments with Outlook" or "Play MP3s on your Sony-Ericsson phone" could qualify as inducement to infringe under this ruling.

The second you show a hint of “inducement,