Centerfield

Filesharing Case

Via email from Simon

Although attention is naturally focusing on the ten commandments cases, the Supreme Court also handed down a ruling in MGM v. Grokster, as to whether the programming houses responsible for peer-to-peer software are liable for the copyright infringements of the users of that software. Per Justice Souter - for a unanimous court - they are indeed.(pdf)

The question considered by the Court was:

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.

The court's answer is as follows:

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 Court accepted that there were valid uses for P2P technology (Slip Op. at 2) (Cf. United States v. Salerno, 481 U.S. 739, at 746), but was satisfied with MGM's evidence that:

[T]he vast majority of users’ downloads are acts of infringement, and because well over 100 million copies of the software in question are known to have been downloaded, and billions of files are shared across the FastTrack and Gnutella networks each month, the probable scope of copyright infringement is staggering. (Slip Op., at 5).

The Court further dispensed with the fiction that Grokster viewed their software's legitimate uses as its primary use:

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. (Id. at 6).

StreamCast’s executives monitored the number of songs by certain commercial artists available on their networks, and an internal communication indicates they aimed to have a larger number of copyrighted songs available on their networks than other file-sharing networks. See A&M Records v. Napster, 114 F. Supp. 2d 896. ...Similarly, Grokster sent users a newsletter promoting its ability to provide particular, popular copyrighted materials. Id. at 8; citation clarified).

Fundamentally, the Court's view is:

The argument for imposing indirect liability in this case is, however, a powerful one, given the number of infringing downloads that occur every day using StreamCast'’s and Grokster’'s software. When a widely shared service or product is used to commit infringement, it may be impossible to enforce rights in the protected work effectively against all direct infringers, the only practical alternative being to go against the distributor of the copying device for secondary liability on a theory of contributory or vicarious infringement. [Id., at 12]

[today 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.[Id. at 19]