The Clicker: On Grokster

Every Thursday Stephen Speicher contributes
The Clicker, a weekly column on television and technology:

"Guns don't kill people. People kill people." Or at least so says the mantra of all god-fearing, right-to-bear-arms,
AK-47-toting NRA supporters. "Guns have a legitimate purpose," they say. "Everyone needs a gun that can be easily converted to a fully-automatic. Without the ballistic power of the Israeli army how could anyone be expected to bag a duck?"

Admittedly, it's dubious logic. However, we seem content to live in a world where bullets don't kill people — velocity does.

So surely then, when the Supreme Court took under advisement whether or not technology companies can be held liable when their products or services are used for nefarious purposes, they would remember that this country has a history of allowing technologies to flourish despite their alternative uses.

And they did ... well, sort of ...

On Monday the Supreme Court handed down their decision in the case of MGM et. al. v. Grokster et. al. The court held that while Grokster?s service was not in and of itself liable, their marketing had crossed the line and pushed them into liability.

Grokster, a peer-to-peer file-sharing service billed as a Napster replacement, was found to have ?taken affirmative steps to foster [copyright] infringement.? It was these affirmative steps that the courts used as the basis for their ruling. Grokster, in an effort to attract a larger and larger user base which, in turn, would bring more advertising revenue, began to actively court and market its service as the new Napster. Co-defendant StreamCast even went so far as to prepare marketing slogans such as ?[w]hen the lights went off at Napster ? where did all the users go?? By suggesting in both marketing and e-mail support to users that their service was an efficient way to gain access to copyrighted materials, Grokster has traveled outside the bounds of acceptable.

By most accounts it was a balanced decision. The Supreme Court used every opportunity to re-affirm the landmark Sony Corp v. Universal City Studios. The court even went so far as to say that it wouldn?t revisit the Sony decision as the Ninth?s Circuit Court had simply misapplied it. In its ruling the Supreme Court said:

?Sony barred secondary liability based on presuming or imputing intent to cause infringement solely from the design or distribution of a product capable of substantial lawful use, which the distributor knows is in fact used for infringement. The Ninth Circuit has read Sony?s limitation to mean that whenever a product is capable of substantial lawful use, the producer can never be held contributorily liable for third parties? infringing use of it?

It is enough to note that the Ninth Circuit?s judgment rested on an erroneous understanding of Sony and to leave further consideration of the Sony rule for a day when that may be required.?

While the decision has been generally lauded, that?s not to say that the ruling was not without its detractors. The public outcry, as suspected, revolves around a few key elements. First and foremost was the vague nature of
?affirmative steps.? Many argue that the term ?affirmative steps? is open to such broad interpretation as to create a
?chilling effect? on technological development. While this is certainly a reasonable fear, history might refute such a claim. To which we return the wonderful world of firearms.

For years firearm makers have been operating and thriving under a similarly vague and questionable set of circumstances. It?s no secret that guns can be used to kill people. It?s also no secret that often certain guns come into favor as a result of their ability to be modified or other characteristics that might lend themselves more towards crime and less towards sport.

These modifications are both well-known and well-publicized. Yet, lawmakers, anti-gun groups, etc. have had limited success in stopping the manufacturers. After all, the gun as made, sold, and marketed was for legal purposes such as target shooting, duck hunting, etc..

While many attempts have been made to bring gun makers to court for the outcome of gun violence, nearly all fail. Even the much touted gun bans of the mid-nineties have lapsed. Military-style guns are selling and selling well.

One thing is clear ? gun sales and technology have not seen a chilling effect.

In the end, it all comes down to one thing, common sense. If you?re going to build a product a) make sure your product has a legal purpose b) market *that* purpose and not the illegal one.

Do that and the courts say you?re in the clear.
 

If you have comments or suggestions for future columns, feel free to drop me an email at
theclicker@theevilempire.com