Brian W. Carver -- Share Alike

Judge Rules Some File-Sharing Software Legal

In a masterfully well-written decision that shows a keen understanding of the underlying technologies, Federal District Court Judge Stephen V. Wilson ruled on Friday that the file-sharing software distributed by StreamCast and Grokster was legal. Specifically he found them not guilty of contributory copyright infringement and vicarious copyright infringement. First, what's the difference?

From Judge Wilson's Decision:

Contributory copyright infringement "stems from the notion that one who directly contributes to another's infringement should be held accountable." ... Traditionally, one is liable for contributory infringement if with knowledge of the infringing activity, (he or she) induces, causes or materially contributes to the infringing conduct of another....

Vicarious copyright infringement extends liability for copyright infringement to cases in which a defendant "has a right and ability to supervise the infringing activity and also has a direct financial interest in such activities. There are two elements required for vicarious infringement: (1) financial benefit, and (2) the defendant's right and ability to supervise the infringing conduct."

On the issue of contributory infringement, the judge said,

The critical question is whether Grokster and StreamCast do anything, aside from distributing software , to actively facilitate - or whether they could do anything to stop - their users infringing activity.

Judge Wilson found that Grokster could not stop their users activity for several reasons. An interesting one is that they license their P2P software from Kazaa and are not the authors of Kazaa's proprietary software. As a result,

Grokster does not have access to the source code for the application, and cannot alter it in any way. ... When users search for and initiate transfers of files using the Grokster client, they do so without any information being transmitted to or through any computers owned or controlled by Grokster.

So, in a coup for free-software-loving file-sharers, proprietary software did some good here! But, when Judge Wilson turns to StreamCast's Morpheus software he says,

StreamCast, unlike Grokster, has access to the source code for its software, and can modify the software at will. ...Morpheus is based on the open-source Gnutella peer-to-peer platform and does not employ a proprietary protocol...

Judge Wilson doesn't put it like this, but he sees a dilemma for StreamCast: First, if StreamCast changed their open-source software to try to control their users, nothing would force users to "upgrade" who could simply carry on with current versions. Secondly, since StreamCast uses software licensed under the GPL, they must distribute the source code with their Gnutella-based P2P client. But then, if users have access to the source code, the amount of time it would take hackers to undo any modifications StreamCast introduced and to re-release a non-crippled version on the internet would be measured in minutes. He says,

Neither Grokster nor StreamCast provides the "site and facilities" for direct infringement. Neither StreamCast nor Grokster facilitates the exchange of files between users in the way Napster did. Users connect to the respective networks, select which files to share, send and receive searches, and download files, all with no material involvement of Defendants. If either Defendant closed their doors and deactivated all computers within their control, users of their products could continue sharing files with little or no interruption.

The really interesting point that I haven't seen people getting is the implications this ruling has for Kazaa. 1) Kazaa controls the proprietary software that Grokster uses. Hence, Kazaa could modify their software to try to prevent copyright infringement. (Update 4/30: I see now that I should have read further, because the amazing Matt gets it.) 2) Kazaa apparently operates "super-nodes" that I get the impression this Judge might consider sufficient to constitute "material involvement" in the copyright infringement of users. (Update 4/30: While I still get this impression from the decision, Derek at A Copyfighter's Musings has convinced me that if running a supernode constitutes contributory infringement, then we're on the slippery slope to merely connecting to the network constituting contributory infringement. This then is a reductio of the view.) And this judge's opinion matters because he will likely end up ruling on Kazaa's future. He's the one who said the RIAA can sue Kazaa in a U.S. court despite Kazaa's bizarre bases of operation. Judge Wilson's summary may show Kazaa a path to continued operations though:

Defendants distribute and support software, the users of which can and do choose to employ it for both lawful and unlawful ends. Grokster and StreamCast are not significantly different from companies that sell home video recorders or copy machines, both of which can be and are used to infringe copyrights. While Defendants, like Sony or Xerox, may know that their products will be used illegally by some (or even many) users, and may provide support services and refinements that indirectly support such use, liability for contributory infringement does not lie "merely because peer-to-peer file-sharing technology may be used to infringe plaintiffs' copyrights. "

The choice for Kazaa seems simple: Stop operating super-nodes by switching to a true P2P Gnutella-based (open-source) software. Then you'll be like Xerox: You're providing a product that users can choose to use for legal or illegal purposes, without yourself contributing to or being able to stop their illegal activity.

Posted by Brian at April 30, 2003 12:13 AM | TrackBack