Roomie Tim Lee has a piece up at AFF’s Brainwash arguing that Grokster shouldn’t get a free pass under the Supreme Court’s Betamax decision for facilitating piracy by users of its p2p network. Here’s the nub of his argument:
[I]n the Betamax decision, the court considered whether the “record” function of the VCR–not the VCR as a whole product–had “substantial non-infringing uses.” When applying that standard to Grokster, then, the courts must look not at the program as a whole, but at the specific features that distinguish it from other file-distribution systems. If Grokster’s “no server” architecture makes it more efficient or offers more features than Napster’s server-based approach, then Grokster can cite the Betamax precedent in its defense….The BitTorrent technology offers virtually the same functionality as Grokster. Running a BitTorrent service requires very little bandwidth and there are BitTorrent communities that allow anyone to upload and download any files they like. Indeed, it is hard to think of a “substantial non-infringing use” of Grokster that is not also available on a BitTorrent network.
I see two problems with this analysis. The trivial one is that I can think of at least one advantages to the distributed format Grokster uses, at least if I understand correctly how it works (which I may not), and it’s precisely the thing that makes it harder to go after pirates. Any form of centralization that makes BitTorrent more susceptible to RIAA lawsuits should also, I’d think, make it vulnerable to other forms of disruption. In other words, files can be made unavailable by removal from a server, whether the reasons are legal or technological. So the decentralized architecture at least appears to add a measure of robustness on that score.
The more general problem, though, is that Tim’s shifted his focus to the feature of the technology which needs to have substantial non-infringing uses. There’s a difference here between the VCR’s “record button”, which is to say, the capacity to save and “time shift” televised programming, and the particular mechanism by which Grokster enables file sharing. The correct analogy would be to scrutinizing the file sharing capability in a larger suite that also played back and organized media files, say, not to the architecture of that capability relative to other options.
If there are substantial non-infringing uses for file-sharing technology, then that’s not altered by the fact that some alternative implementation of the same basic capability makes it easier to police piracy. What follows from Tim’s argument is that, had Sony been able to (cheaply) build some broadcast-flag style protection tech into the Betamax, this would’ve entailed that the Betamax sans-flag ceased to have substantial non-infringing uses. That seems like it can’t be right. The question of whether a particular technology maker is liable for contributory infringement can’t depend on the existence of some other technology that would accomplish the same end with less piracy.
3 responses so far ↓
1 fling93 // Mar 28, 2005 at 9:17 pm
I’m not *that* well-versed on the technologies either, but my understanding is that decentralization is also beneficial to help balance load and bandwidth. Indeed, this is the primary design goal of BitTorrent, which is not really designed as a file-swapping service. I can go into a little more detail on how BitTorrent works, but it’s probably not all that relevant.
But last I checked (which was a while ago) it’s pretty hard to find things on BitTorrent, since it doesn’t have a peer-to-peer search algorithm built in. People were going to central servers, like Suprnova, to find torrents to download, and many of those servers have been shut down now.
Maybe that’s changed recently, I dunno.
2 Will Baude // Mar 29, 2005 at 12:40 pm
Umm, why can’t the liability depend on the existence of equivalent technologies that would cause less piracy? It certainly wouldn’t be strange to tort law, or to much of legal reasoning.
First Amendment has a less-restrictive-alternatives test to see when the government has infringed too much speech. (And, for example, the existence of workable internet filters is taken to make some gov’t restrictions on internet porn unconstitutional.) I’m not sure it would be good to have a less-infringing-alternatives rule for secondary liability, but I don’t see why it “seems like it can’t be right.”
3 Robert McNamara // Mar 30, 2005 at 8:04 am
I don’t think the argument needs to center on whether or not there is some other technological mechanism to accomplish the substantial non-infringing use (though I agree with Will that it *could* theoretically be made hinge on that). If that were the case, Grokster would be tremendously easy, as the only non-infringing use for Gnutella or FastTrack is distribution of non-copyrighted material, which can be accomplished through web pages and Google just as easily. (Unlike Torrent, the technology here doesn’t download differently from the download mechanisms of a web site).
While I don’t know that this is what I’d predict, the Court could easily go more down the path Congress took with the DCMA — requiring reasonable efforts to be made to exclude users who violate copyright law in order for the service to be protected (in this case by flagging and removing copyrighted material from the network). That would give rise to the same Betamax-sans-flag-is-no-longer-okay situation Julian objects to above, but I don’t think that’s an unfair gloss on the Betamax decision. Imagine it in the reverse: I develop a technology whose sole conceivable use is to violate copyright. I then weld a toaster to it. I would have a hard time invoking the Sony rule on the grounds that my device can also burn bread when I could pretty damn easily remove the objectionable functionality from my bread-burning machine.