1. Friday began with Frank wondering whether Judge Bates understood or cared about how digitization has impacted copyright. I’ve often wondered if progress in the copyfight would require waiting for a generation of judges and politicians that grew up with widespread use of personal computers and the Internet. We need judges who have enough technical understanding to tackle these tricky issues and who understand that the copyfight has broader implications for speech, privacy, and innovation.
Friday ended with a sign of hope. Judge Wilson clearly gets it. He did his homework to understand the technical details and went beyond the RIAA and MPAA’s rhetoric. He gave meaning to Judge Patel’s important qualification in Napster: “We are compelled to make a clear distinction between the architecture of the Napster system and Napster’s conduct in relation to the operational capacity of the system.”
2. It’s interesting to look at the Grokster/Morpheus decision in light of Fred von Lohmann’s P2P White Paper. In particular, I was interested in how the judge dismissed Grokster’s and Streamcast’s customer support (K) and update functionality (J) as grounds for liability. Judge Wilson asserted that citing tech support in the abstract, without any specific connection to infringing activity, is not enough. Furthermore, though he talked about the update feature only in terms of material contribution, it seems important in his vicarious liability judgment, too. It does not matter that Grokster and Streamcast could alter their products to make them less susceptible to infringing activities. The only issue in determing “right and ability to control” infringement is whether that ability actually exists within the products at hand. It seems Judge Patel’s remark that “Napster…should bear the burden of policing its system within the limits of the system” (emphasis added) probably played a large role here. With Napster, there clearly was an ability in the product to block access. The software and Napster’s servers were inherently linked. With Grokster and Morpheus, once the software is on someone’s computer, users’ activities are out of the companies’ hands.
3. I expect the RIAA/MPAA to hammer away at this distinction in the appeal. They will focus on how easy it would be to alter the software and how providing the software itself is a way of controlling access. They will assert that even if they’re not contributing to infringement, they certainly have an ability to control the infringement.
4. Matt brings up how anti-P2P legislation could cover VCRs and photocopiers, creating more opponents to regulation. More likely, such legislation will mimic the S-DMCAs in focusing on “commuication service providers.” The trick will be tailoring it as narrowly as possible to keep the tech companies from throwing a fit. Can this be done? I’m not so sure. You can’t go after search functionality alone, because that will sweep too broadly. Perhaps the legislation would target only software that allows people to search others’ hard drives. (I’ll try to have more on this later.)
5. What does all this mean for KaZaA? Perhaps nothing at all. Providing Supernodes certainly could be construed as creating the “site and facilities” for infringement. At the same time, the court will have to take into account how even pulling the plug on these Supernodes will not deactivate the service. If running a few Supernodes constitutes infringement, then wouldn’t simply connecting to Gnutella, without sharing any files, make someone liable? From what Judge Wilson said, it sounds like a finding of liability requires having substantial control over how information is passed between users.
As far as vicarious infringement, the court will certainly have to take into account how KaZaA pulled the plug on Morpheus users. They seem to have some ability to control access.
5. Also, what does this mean for the recent Aimster/Madster appeal? Though I’m not clear on all the details, I doubt the Grokster/Morpheus ruling has much bearing here either. Madster’s central servers were (I think) pretty important to the system’s functioning. I couldn’t tell from the briefs whether they actually had a central index, but, from earlier proceedings, it seems that unplugging their servers would have a substantial impact on the service. Madster is also much more explicit about helping people share copyrighted works.
Furthermore, Judge Wilson compared Aimster to Napster, implying that his decision is supposed to be consistent with the Illinois district court’s ruling. So, for Wilson’s decision to matter for Aimster, the appeals court would probably have to find that the district court misinterpreted the case’s facts.
6. I refuse to believe that Aimee Deep is 18.