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Of tools and weapons


By Scott Bradner


When it comes down to it, the old Sony and Napster beat the new Sony.  Sony Music Entertainment, along with a whole pile of big and not so big names in the music and movie businesses, got a big shock on April 25th when a US district court judge in California ruled that Grokster and Morpheus did not themselves violate copyright law.  There was a little bit of irony in the judge's opinion since it depended heavily on the 1984 Supreme Court decision that supported Sony's ability to sell VCRs and on the 2001 decision that closed down Napster.  This decision is very good news for the Internet, even if it complicates life for the media giants.


In this case, both sides agreed that a major use of these peer-to-peer applications was to illegally share copyrighted material.  But a general knowledge of illegal activity is not enough to make a company guilty of contributory copyright infringement (the main accusation in this case). 


The US Supreme Court, in the Sony VCR case, said that a technology could not be banned just because it might be used to infringe copyright as long as there were "substantial noninfringing uses" of the technology.  In that case, the Supreme Court found that there were such uses for VCRs.  In the current case, the district court found that the parties agreed that there were substantial noninfringing uses of Grokster and its like, for example, sharing movie trailers, free songs, the works of Shakespeare etc.


Another requirement of contributory infringement is that there must be actual knowledge of a specific infringement at a time that the defendant materially contributes to that infringement, and at a time when the defendant could actually stop the particular infringement.  The distributed design of these applications meant that the people who distributed the file sharing software (the defendants in this case) could not know what files were being shared nor could they block a file from being shared even if they were told about it.


When boiled down to its essence, the media companies were claiming that because Grokster could be, and was, used for copyright infringement it had to be banned even though Grokster's distributors had no control over what was actually shared.  This is basically the same argument that was used against Sony in 1984.  If this argument were to win, any tool that could possibly be used to do something wrong could be banned.  This could cover CD and DVD burners, personal computers, MP3 players, and the Internet itself. 


I heard the same basic argument from a number of readers who complained that I had not discussed the liability of people offering free WiFi Internet access in my column of a few weeks ago. (reference 5-minute column)  This decision might make it harder for any such liability to be proved - open WiFi access clearly does not meet the requirements above, thus, if the same logic is used, it may be hard to show any liability .


The media companies do have a very real problem and the widespread use of technologies like Grokster and CD burners deprives them of legitimate revenue.  But, claiming  that the Internet, and just about every other modern technology, are weapons that must be banned is not the answer to their problem.  Thankfully, the court agrees.


disclaimer:  Some B-School & Law School graduates are not angels, but I would not want them classified as weapons.  In any case the above is me playing a lawyer, and not a University opinion.