Donna Wentworth recently posted about respondent’s final brief in the Grokster case. In characterizing petitioner’s brief, respondent’s argue:
The petition, quite simply, is an effort to obtain through judicial policy-making what Petitioners were unable to get from Congress during this legislative session. This end-run around the legislative process should be rejected.
One of the first things I learned in law school was that courts don’t like end runs around the rules – end runs are bad. Another thing that is bad, at least as far as it is against the law, is the unauthorized sharing of copyrighted materials. If you add the two “bads” together, you get a “super bad” – making an end run around the copyright laws primarily for the purpose of engaging in the unauthorized sharing of copyrighted materials. In sum – the Grokster/Aimster file-sharing systems are super bad. So what to do?
Getting back to the petition - Respondents argue that with respect to vicarious liability, both of the lower courts found absolutely no evidence in the record to suggest that Respondents had any ability to supervise or control the infringing activities of those who use their software, and that this defect is necessarily fatal to Petitioners’vicarious liability claim (citing, among other cases, Napster). Respondents also argue that Petitioners urge a “radical departure” from established precedents in their desire for the “could have designed it differently” test to apply where there is no “right and ability to supervise” that is normally needed for vicarious infringement. Respondents point out that the courts below, and even the Sony court, rejected this “radical reconfiguration” of vicarious liability. Maybe I missed it, but I didn’t see an express rejection by the majority in Sony of the “could have designed it differently” test. I imagine the Sony court didn’t want to touch it, and at any rate didn’t need to go there. However, in Aimster, Posner went there, stating:
“We agree with the recording industry that the ability of a service provider to prevent its customers from infringing is a factor to be considered in determining whether the provider is a contributory infringer.” (334 F.3d 643, 648)
Although I shudder at the sight of a court agreeing with the RIAA, this brings me to my point (there’s a point you ask?). These decentralized file-sharing systems are a blatant attempt to avoid the legal problems that Napster faced – namely secondary liability for copyright infringement. While “designing around” a technology is not a bad thing, designing around laws to allow for infringement of another’s right is. I agree that technically speaking, Grokster doesn’t violate the current contributory and vicarious liability doctrines, and thus the lower court decisions in the Grokster case are correct. I am not so sure however, that Grokster will be able to escape the Supreme Court unharmed. Although, in the words of my criminal law professor: “We don’t punish people for being bad, we punish them for committing crimes”, I think the Supreme Court will find some way to, for lack of better words, “stick it” to Grokster.
I think the court might grab onto the “could have designed it differently” approach – the one that wasn’t expressly rejected by the majority in Sony. I wouldn’t be surprised if the court added an additional requirement to vicarious liability that states that liability will be found if there is no showing of an attempt by the service/technology providers to implement reasonable precautions to prevent the unauthorized copying/distribution of copyrighted material, even if once the service/technology is out on the market there is no ability to supervise how the people use the service/technology.
I don’t think that taking reasonable precautions to prevent infringement of the rights of others is too onerous a requirement, or will significantly impede technological innovation. As Justice Blackmun stated in the Sony dissent, in arguing that a remedy could be fashioned that didn’t interfere with time-shifting:
“Sony may be able, for example, to build a VTR that enables broadcasters to scramble the signal of individual programs and "jam" the unauthorized recording of them. Even were an appropriate remedy not available at this time, the Court should not misconstrue copyright holders' rights in a manner that prevents enforcement of them when, through development of better techniques, an appropriate remedy becomes available.” (464 U.S. 417, 494)
Applied to Grokster, requiring the service to include means to cut out the illegal file-swapping would not interfere with the right of ordinary citizens to utilize the service. I know that there currently exist methods and technologies that can be employed to track down and terminate illegal files on these networks, and would bet that these capabilities were around when Grokster was developed. The makers of Grokster could have easily designed this kind of protective feature into their software, but didn’t, to avoid the law. Maybe I’m wrong, but I don’t think it is too much to start holding service providers and technology manufacturers/creators responsible for their creations. I know there will always be unforeseen uses of every product, but where is the harm in requiring reasonable efforts to avoid exacerbating infringement of other’s presently-existing lawful rights? It might add to the development costs of some products, but that can be recovered by charging a few extra pennies for each product.
I’m not a huge fan of the copyright monopoly as it exists today, but I don’t think encouraging irresponsible development of products/services, even if they might be facially legal, is a good thing. It seems like evading responsibility is an all too common game in society. A post by Jason Schultz discloses how a father is being sued by the RIAA because his 12 year old son used the computer the father bought him to illegally download 1000 songs. I feel for the poor guy, but you’d have to be living under a rock not to know that young kids like to download music, and the main way to do it, is through the use of a computer. A responsible parent would have told the kid that it was “bad” to download music without paying for it, and if the father ever got sued, it would be coming out of the kid’s allowance (or the kid would be mowing his father’s lawn for the rest of his life). Instead, the father would rather complain when he is unlucky and gets sued for his kid’s illegal behavior.
I’m not a kid-hater or in favor of restrictions on technological innovation. However, a requirement that reasonable precautions be taken to avoid encouraging copyright infringing activity is warranted. If car manufacturers and bottle makers can be forced to make their products safer (to protect the public’s right not to get injured), why can’t technology developers and service providers be required to make reasonable attempts to protect copyrights? After all, they are the ones who benefit the most from illegal file sharing. Now I know there’s not a whole bunch of legal precedent to support this additional secondary liability requirement, but lack of legal precedent hasn’t stopped many courts in the past. And where there’s a will to hold some people responsible, I have no doubt that the Supreme Court will find a way.