PFIR - People For Internet Responsibility
PFIR Statement on Supreme Court
"Grokster" Decision and File Sharing

June 27, 2005

PFIR Home Page

The U.S. Supreme Court has made a unanimous decision to send the "Grokster" case back to a lower court, saying that file-sharing services can be sued for third-party infringement in some situations:

"We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by the clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties."

Obviously there is lots of room for interpretation, so courts and lawyers will be busy for many years on these cases.

However, let's be clear about one thing. In the long run, the decision is like trying to use a wad of chewing gum to plug a leaking hole in a massive earthen dam. You may cut down on the dripping for the moment, but don't throw away your snorkel, for the flood is yet to come.

The ability to sue companies providing file sharing or related technologies, or even the end-users of such technologies (the latter group was not at issue in this case), will not significantly reduce the overall level of infringing file sharing except perhaps in the extremely short run. In the long run, such file sharing will continue expanding, especially in the video arena.

This is a technological reality that cannot be altered through mere economic, legal, or political will. I say this even though I am opposed to the rampant piracy of music and films that obviously goes far beyond any possible interpretation of fair use (e.g., the ability to make back-up or other personal-use copies of copyrighted media is completely reasonable, but offering that media publicly to all comers on a file-sharing network is not).

But in the end, how we feel about this won't really matter, for the technology trumps us all. There is no practical technological means to stop arbitrary file sharing, for ultimately it's all just about moving bits from place to place, and that's what the Internet, or even telephone modems for that matter, are all about.

The ruling will obviously suppress development in this area (and many affiliated technological areas) by U.S.-based commercial enterprises and other organizations who might wish to popularize or commercialize such systems. But such technologies will continue to be developed elsewhere and be used globally, including in the U.S. While the ability to sue internationally has been increasingly enhanced as of late, there will surely be those in the international community willing and able to fill the development gap created in the U.S. by this court decision.

Open-source file-sharing systems will continue to proliferate as will widespread music and film piracy, though the file-sharing developers may become anonymous, and various sophisticated "masking" techniques will be increasingly employed as these systems move "underground" (e.g., file sharing can be encrypted and disguised to look like a VoIP stream, e-mail, or even a bunch of pretty digital photos).

Everyone will lose on this one. Large-scale piracy will continue and grow, while many worthwhile legal applications for file sharing won't be commercialized or openly deployed due to fear of lawsuits.

Viewed dispassionately, the Supreme Court's decision is actually understandable -- there is (or should be) a gut feeling that widespread piracy is ethically wrong. But just as trying to legislate the value of "pi" won't change its actual value, the Supreme Court's ruling in the Grokster case won't alter the underlying realities.

That's just the way it is, like it or not -- unless we're willing to completely turn off the Internet -- and the phone system!

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--Lauren--
Lauren Weinstein
lauren@vortex.com or lauren@eepi.org
Tel: +1 (818) 225-2800
http://www.pfir.org/lauren
Co-Founder, PFIR - People For Internet Responsibility - http://www.pfir.org
Co-Founder, EEPI - Electronic Entertainment Policy Initiative - http://www.eepi.org
Moderator, PRIVACY Forum - http://www.vortex.com
Member, ACM Committee on Computers and Public Policy