An Indecisive Decision

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The U.S. Supreme Court ruled that certain P2P companies could be liable for their users’ copyright infringement.

What the main decision essentially said was that there are multiple ways you can be found guilty of indirect copyright infringement, and if you’re found considerably encouraging the illegal use of your product, you’re guilty.

They didn’t make that up out of the blue, encouraging the illegal use of a product has long been a basis for indirect copyright infringement.

In plain English, the court ruled that this situation was different than Sony because Sony didn’t promote the idea of making illegal copies, while Grokster did.

If this seems to be a bit hairsplitting, it is, but it was the only way to rule against Grokster given what the law currently says.

Of course, the immediate question arises, “What happens if you’re not as noisy, or not noisy at all about the illegal use of a product?”

In other words, let’s say I wanted to write a program called StroP2P. If I say absolutely, positively nothing, any place, anywhere about the possible illegal use of my program, and told anybody who asked that they shouldn’t do such things, am I protected?

There is no answer to that question in this decision, and anyone who tells you otherwise hasn’t looked deeply enough into this. The reason for this is that while all the justices agreed that these particular folks were guilty, they didn’t all agree on the why, and certainly had different views on what really mattered if the situation were a bit different.

There were actually three opinions in this case, the decision, and two concurrences.

In the Supreme Court, a concurrence happens when one or more justices agrees with the “what” of a decision, but not some or all of the “why” of that decision.

It’s like two guys talking about Prescotts. The first says, “I’m not going to buy a Prescott because they’re slower than Athlon 64s.” The second says, “No, you’re wrong. You shouldn’t buy a Prescott because they run a lot hotter than Athlon 64s.” They both agree that Prescotts aren’t a good buy, but for different reasons.

To try to figure out what the Supreme Court might do to StroP2P, you have to look at all three decisions, and see how many justices agreed with each.

Those who signed on to the main decision seem to be leaning in the direction that a “quiet” P2P program could well be legal. The problem is, only three judges signed on to that view.

There were another three justices inclined to think that the end results matter a lot more than the amount of noise I make about it. To them, if I offer a P2P program that is used illegally 95% of the time, they’re not inclined to care too much about how quiet I’ve been about it.

The third set of justices (another three) seemed to think that the level of legitimate use ought to determine whether something is good or not. They seemed to hint that if 10% or more use of StroP2P were legitimate, that that would be OK.

All three decisions have a lot of hemming and hawwing in them. If I wanted to write a P2P program and stay absolutely quiet about illegal uses, I certainly wouldn’t feel sure the Supreme Court would find that OK. Then again, I certainly wouldn’t feel sure the Supreme Court would say No Way, either.

The only thing I would feel pretty sure about is that the RIAA and MPAA would sue me and a lot of others like me just to get an idea of what’s OK and what isn’t. You may say, “Go for it,” but you’re not the one at a minimum spending hundreds of thousands in legal fees even if you’re right, and never mind if you’re wrong.

Even if my business isn’t so much like P2P programming, I have reason to be concerned. For instance, if I’m Best Buy, and I advertise a system by telling people they can burn music and movies on it, is that OK? There’s now some doubt about that, and it wouldn’t be unreasonable for RIAA/MPAA to sue just to find out (and discourage anybody else from advertising like that in the meantime).

What this decision does is enable those kind of lawsuits. While you can ignore those who hysterically think unimpeded “innovation” is part of the Bill of Rights, this will empower content providers to start suing anyone making anything primarily used for copying purposes. That ball is in the RIAA/MPAA’s court.

The Real Story

Don’t blame the Supreme Court for this and the inevitable future decisions on this subject. Their job is to interpret the law, not make it, and they can only make decisions based on what Congress passes. If the decisions seem awkward or hairsplitting or unrealistic, that’s because current law wasn’t written to handle these situations.

The general rule-of-thumb in this area of U.S. law is that the courts will uphold whatever laws Congress passes unless they are so outrageous that they violate constitutional standards.

For instance, if Congress passed a law banning P2P programs, the courts would almost certainly find that fine. On the other hand, if Congress passed a law allowing content creators to put in code that would destroy computers if an illegal copy were to be made, the courts would almost certainly not find that OK.

The responsibility for proper copyright law attuned to the times rests in the hands of Congress, and Congress alone.

And up to now, they are clueless, and from every indication so far, they don’t want to deal with this, and will be more than happy to pass the buck to the courts.

Remember the INDUCE Act some months ago? Well, the core concept behind it was endorsed in the main Supreme Court decision. We thought INDUCE was bad because it was too vague, and a court version of the same doesn’t make it any better.

The problem with Congress is that this issue is a political mess. The Democrats get a lot of ideological support from those who want to P2P, but they get major financial and other support from the content creators.

Republicans are ideologically more in favor of property rights, but many of them say, “Why should we help the people who spend millions and millions of dollars to defeat us?”

In any event, both sides find it a lot more fun verbally peeing on each other at the moment about other things. So do all the interested parties. This is not the best environment in which to expect technophobic legislators to rewrite the copyright laws.

So Congress will be quite happy to let the courts fumble with this for a year or two and get this hot potato off their lap.

It’s a mess, and it’s going to get worse.

Ed

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