Tuesday, March 29, 2005

'Ster Stir

More file-sharing stuff from Slate:

The genius of Napster, Grokster, Aimster, and other free file-sharing services is the ease with which they turn law-abiders into law-breakers. Some of the credit (or blame) goes to the open-source movement—represented outside the Supreme Court today by a group waving "Don't Stop Innovation" signs. But file sharing also owes its success to those of us who have just stopped noticing copyright warnings. According to one congressional study, most people think that copying for money is wrong, but that copying for friends is OK. In other words, who really stops to think before photocopying a magazine article or burning a copy of a CD? Swapping files with thousands of other people over a server, it turns out, doesn't feel that different. It doesn't feel like stealing.

American copyright law, however, would probably beg to differ. In 2001, the 9th Circuit federal court of appeals shut down Napster, and in 2003 the 7th Circuit did the same to Aimster. Though they weren't downloading copyrighted material themselves, these companies knew they were helping their users to help themselves, and didn't take the steps they could have to stop them. That made the companies aiders and abettors, under a legal doctrine called contributory liability. Then Grokster and StreamCast came along and tried to complicate matters. The newer companies still allow users to share music and movies (and they also sell a lot of ads). But they don't help find or transfer the files, and they don't control any network—in their view, terms like "network" and "service" are misleading.

Last year, a different 9th Circuit panel bought the idea that the difference in technology between Grokster and Napster is the difference between legal and illegal. The appeals court let Grokster and StreamCast off the hook, because neither company controls or regulates access to an index of files. The ruling relied heavily on Sony v. Universal City Studios, the 1984 Supreme Court decision that saved the VCR and (thank goodness!) the Betamax. In Sony, the movie studios wanted to stop the production and sale of videotape recorders because they were being used to copy TV shows. A five-member majority of the court was about to do as asked. Then, at the last minute, Justice Sandra Day O'Connor switched sides, averting embarrassment and allowing the studios to go on to reap large profits from the video market. But the resulting opinion in Sony wasn't a model of clarity. At one point the court seemed to say that a product need only be "capable" of legitimate commercially significant use. At another, it implied that some actual use had to be legitimate and commercially significant, without saying how much.
The article goes on to describe the arguments heard in the Supreme Court. Don't worry, it's pretty breezy.

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