Martine Courant Rife, MA, JD, The WIDE Research Center, Michigan State University
This paper was supported and originally published by the WIDE Research Center at Michigan State University. Originally published July 2005, revised for further publication venues March 2006.
In an apparent loss for promoters and users of peer-to-peer filesharing technologies, the US Supreme Court unanimously (9-0) overturned the Ninth Circuit Court of Appeals ruling in the case ofMGM v. Grokster (2005), a case testing whether companies running filesharing services (like Grokster and StreamCast) could be held indirectly liable for the copyright infringements of people using their software for peer-to-peer filesharing.
The Court found that Grokster and StreamCast (the licensers of the Morpheus software) were not “merely passive recipients of information about infringing use” of their software. Rather “each took active steps to encourage [copyright] infringement”; the companies “promoted and marketed themselves as Napster alternatives.” In other words, the companies promoted copyright infringement and sold their services on that basis. The Court found this behavior egregiously blatant, and that was the primary basis for its finding.
It is important to understand the reasons supporting the Court’s opinion. The Court did not rule against peer-to-peer technology per se. Rather the problem, as the Court saw it, was in the way that the companies constructed and subsequently marketed their filesharing software – explicitly as a way to circumvent and subvert copyright holders’ rights. This decision leaves open the possibility that other companies could develop and market P2P filesharing technologies, as long as such companies are sure to promote noninfringing uses.
The Court went to great lengths to distinguish its Grokster decision from its 1984 ruling in Sony v. Universal. Although the Court upheld its position in Sony, reinforcing that mere knowledge that a product or technology might potentially be used to infringe is not a sufficient basis for indirect liability, it did broaden what constitutes “inducement” of copyright infringement, leaving some ambiguity on an important point: To what extent must distributors filter, reprimand, educate, or police copyright infringement on their sites?
What are the implications of this case for educators and writing teachers?
The recording and film industries (e.g., RIAA, MPAA) are likely to read the Court’s opinion as broadly as possible and may use it to pursue another type of filesharing intermediary: the university. We have already seen evidence of the recording industry’s willingness to do this. In 2003 the recording industry did not hesitate to file high-profile lawsuits against students at Princeton University, Michigan Technological University, and Rensselaer Polytechnic Institute seeking billions of dollars in damages (Yu). Clearly universities are not promoting copyright infringement by their students, as were Grokster and StreamCast – and universities could just as easily use the Court’s opinion inGrokster to defend its practices. Nonetheless, the recording and film industries are likely to use the ruling as additional basis for litigation holding universities responsible for copyright infringements by students – and such action could well have an unfortunate chilling effect on universities.
On a more general level, what the case implies for writing teachers is that you cannot show disregard for the rights of copyright holders. Copyright holders DO have rights, and those rights must be respected. You cannot encourage and promote copyright infringement. You cannot “turn a blind eye” to copyright infringement, even by others, if it is occurring in/across/through an electronic space that you are responsible for — that is, you have set up an electronic “intermediary space” (e.g., your class web site, your blog). At the same time, you are not responsible for infringements by others if you are acting in good faith to promote respect for copyright and if the intermediary service or server you are sponsoring clearly is intended for “substantial noninfringing purposes.”