TriNetre - Archive for June 28, 2005

(no longer updated)

While ruling against Grokster, Justice Souter wrote:

The record is replete with evidence that from the moment Grokster and StreamCast began to distribute their free software, each one clearly voiced the objective that recipients use it to download copyrighted works, and each took active steps to encourage infringement.

I am a thickhead when it comes to law or interpreting points of law, but does this mean that, to be able to prove that I as a software developer did not encourage the unlawful use of my software, I will have to actively try and deter unlawful use or is it enough to show that I did not promote the use for unlawful activities?

Consider the paragraph to which footnote 12 is attached:

Second, this evidence of unlawful objective is given added significance by MGM's showing that neither company attempted to develop filtering tools or other mechanisms to diminish the infringing activity using their software. While the Ninth Circuit treated the defendants' failure to develop such tools as irrelevant because they lacked an independent duty to monitor their users' activity, we think this evidence underscores Grokster's and StreamCast's intentional facilitation of their users' infringement.

Footnote 12 reads:

Of course, in the absence of other evidence of intent, a court would be unable to find contributory infringement liability merely based on a failure to take affirmative steps to prevent infringement, if the device otherwise was capable of substantial noninfringing uses. Such a holding would tread too close to the Sony safe harbor.

As Ernest Miller asks: "What the heck does this mean? "

The immediate question I had when I read these points was - how will this apply to the BitTorrent technology? While BT developer has not been caught on record (as far as I know) advocating use of BT to download copyright infringing materials, he has not gone to the extreme to add filters too. Will the fact that the protocol is inherently open and the IP addresses are visible be enough to show that Bram Cohen is "no evil" ?

Dana Blankenhorn at Corante thinks BT is safe:

To me it looks like they wouldn't hold against BitTorrent, but that Grokster's business model, which did sell the service as a way to infringe, crossed a legal line.
..
As I see it the decision puts a limit on the "non-infringing uses" language of the Betamax decision, but does not overturn it. Grokster falls because its business model is based on infringement. BitTorrent has no business model, and thus may be exempt.

What about the "donate" link at the official website of BT? Is that a "business model"?