July 2, 2003
(UPDATED) Let me try to tie together the many wavering, confusing, and confused posts I’ve made. I’m still writing to talk it out, to help me figure it out – so I still don’t think I have a Final Answer. I’m also still writing hoping that others will correct me where I’m wrong – so I’m ending with a bunch of questions.
As I’ve thought more and more, I think my last post is more or less correct. The key to the ruling is that knowledge, a material contribution, and an ability to act on your knowledge is not enough. Simply providing any form of site and facilities for infringement is not enough. Posner wants to carefully balance and investigate the infringing and non-infringing uses, and the site and facilities, what they’re used for and what they were intended for. That also means that (diverging from Grokster) if the service can be modified slightly to block infringements without much cost to you or its quality, you’ll be expected to make those alterations.
To return to my original question: is Posner’s ruling meaningfully different, in practice, from the Napster standard?
For all the commenter has right, I think he has one thing wrong or, at least, misleading. Even under Napster, simply providing a web browser didn’t make you liable. First of all, I don’t read that ruling to mean totally general, non-specific knowledge of infringement is enough. Second, the material contribution is still key – so whether you’re half way to infringement based on knowledge doesn’t matter. I think providing the full-fledged file index is a far cry from providing a means of finding any website. Third, providing a web browser doesn’t give you a capacity to act on your users, under Grokster and I’d say under Napster.
AIM wouldn’t necessarily be liable. They don’t provide any file index. They can ban users found to be infringing repeatedly, but they can’t act on their users like Napster could
And it’s not like considering affirmative conduct towards infringement wasn’t part of the equation before. Part of the reason why Grokster/Morphes could be differentiated from Napster is that they didn’t talk to their users about infringement. They don’t maintain a relationship with their users.
Maybe this is the way to look at it: what site and facilities under Aimster would not be protected under Napster? From Napster we already knew that producing slinky dresses without any contact with dress wearers wouldn’t be a problem, and we knew running a brothel massage parlor would be. We already knew aiding and abetting made one liable. What we didn’t know was what that meant. What we didn’t know was what made a service akin to a brothel – what made a particular material contribution and capacity to act significant?
Would Napster itself be protected under Aimster? How about a Napster that didn’t affirmatively encourage infringement? That version could essentially be called Google.
Would this mean Google would not be expected to respond to a C+D that said, “You’re linking to these specific sites that feature copyrighted material”? That probably isn’t disproportionately costly.
So, who can name a system that would be protected under Aimster but not under Napster? Let’s make that a little bit harder and better: what system would be protected under Aimster but not under Napster viewed through the lens of Grokster (as it should be)? How about the reverse?
Or, to put it a little differently: what system is in less doubt because of the Aimster decision?
Again, my worry is that because of the vague cost-benefit analysis Posner’s using, along with his argument about “disproportionately costly” changes, this decision will lead to more doubt for technology creators. Don’t forget pages 10-11 of his opinion, which emphasizes that non-infringing uses have to be weighed in each case, along with his views on potential non-infringing uses on page 13. It leaves a lot in question for each particular case.
Update: Alex, who I saw today at iLaw and said he’d post something on the Madster ruling soon, pointed out something I totally missed. Posner’s fifth possible non-infringing use takes a shot at the MP3.com case, saying that it should have been decided on the grounds that the system was “too lax.” He had no reason to go after that case in this context; that’s yet another sign that Posner was being rather ambitious in setting out his standard. It might seem that overturning MP3.com would be good, but his grounds leave a lot to be desired. I’m not sure why that cost-benefit analysis is better – it seems to just make the issue more confusing. Looking forward to Alex’s assessment