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P2P promises economic Valhalla - Grokster et al

Don't kill the golden goose, Supremes are urged

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In a recent brief written for the US Supreme Court, the embattled Grokster and StreamCast (Morpheus) claim that their P2P technology represents an economic boon to the entire internet because it uses bandwidth more efficiently than other technologies:

"Peer-to-peer arrangements also provide efficiency benefits at the high end of demand: the more any particular material is sought, the more end-user computers will have it, and render it accessible over the millions of diverse communication lines serving those computers, all without bulking up storage and bandwidth capacity on a central server," the brief contends.

Indeed, this is an economic payoff of monumental proportions, we are told:

"Achieving such desirable functionality with substantial cost savings is practically a definition of economic progress."

In addition to citing the spectacular growth of networking efficiency (and malware propagation) that Grokster, Morpheus, Kazaa, etc., will bequeath to future generations, the defense supplements its appeal to protection under the Supreme Court's 1984 Sony decision by pointing out that the software makers do not actually participate in copyright infringement. Consumers only can do so only after they've infected their systems with the software, and the companies have no control over what happens next.

Talking the talk

If there's one issue that the Grokster defense team had better be prepared to speak about lucidly before the Supremes later this month, it's the putative non-infringing uses to which file sharing software can be applied. Although lower courts found that such uses exist, it's likely that the Supremes will have a few questions of their own along those lines.

Grokster relies heavily on the Sony decision, which held, among other things, that makers of a product with "commercially significant non-infringing uses" cannot be held liable for infringement even if the product has significant infringing uses. Photocopy machines and VCRs are common examples of this type of product, although it must be observed that they do not possess a capacity for the wholesale re-distribution of copyrighted works, as P2P software does.

Nevertheless, the defense claims that P2P software satisfies the conditions implied in Sony, and cites the previous court decisions for emphasis.

One issue that will likely come up for debate is whether the products in question are economically fit on the strength of their non-infringing uses alone. That is, to make a good case, the defendants should establish that consumers would still want the product if it were impossible to infringe copyrights with it. This would bolster notions that it not only can be used in a non-infringing manner, it actually is used in that way.

But the Grokster brief, which no doubt foreshadows several chief points planned for the upcoming oral arguments, is a bit vague on the plethora of non-infringing benefits that P2P users are supposedly enjoying. Indeed, the brief on several occasions repeats its observation that the district and appeals courts were satisfied that there are such benefits.

However, since the Supremes are going to decide whether those courts ruled correctly, they can be expected to evaluate for themselves whether or not P2P software is enabling significant non-infringing use.

In examining this question, the Court might ask whether users would willingly to pay the price - that is, willingly allow their computers to be hijacked by the cornucopia of spyware and adware that commercial P2P programs install - in the name of non-infringing uses alone. If the Court were persuaded that users would reject the P2P malware tariff if they couldn't also skirt copyrights, this could be influential.

Indeed, the plaintiffs argue that if infringing uses were somehow eliminated, the products would all but disappear.

The meaning of is

Whether that claim is true or not, it remains an open question, although the same claim could not be made of photocopiers or VCRs. People would certainly buy them even if they could miraculously be made infringement-proof. Thus, the chief weakness in Grokster's defense is the difficulty of establishing that non-infringing uses of P2P software are real instead of merely potential.

The brief indicates that, rather than offer specific and persuasive examples of significant non-infringing uses, the defense will try to undermine the assumption that non-infringing uses have got to be tangible:

"P2P's benefits of massive cost savings, robustness, niche-market service, and scalability clearly make it capable of substantial legitimate uses," the brief says. (our emphasis)

We can also expect the Grokster team to try to persuade the Court that "significant" non-infringing uses can also mean "hypothetical" non-infringing uses. We get a hint of how they intend to argue that here:

"Contrary to the Government, nothing in Sony's clear rule requires that non-infringing uses suffice to make the product commercially viable... [In 1984, t]his Court reversed the Ninth Circuit in Sony without any such inquiry..."

This means that a non-infringing use adequate to qualify for protection under Sony need not in itself be commercially feasible. It isn't necessary to prove that anyone would pay for the ability to do whatever legal things an otherwise infringing product permits. And the Supremes have already reached a decision without imposing any such requirement, the brief observes.

The next step is to try to undermine the language, "commercially significant," so that it can't be appropriated by the opposition:

"The term 'commercial' is not even part of the express statement of the Sony rule, because the term plays a limited role: to assure merely that the non-infringing uses add value as an article of commerce, i.e., are among the reasons consumers want the particular product..." (emphasis original)

Additionally, there is an effort to reach back to the roots of Sony, to further establish a useful precedent:

"Not surprisingly, the source of Sony's rule, patent law, imposes no 'commercially viable' requirement, but merely refers to an 'article or commodity of commerce' being suitable for substantial non-infringing use, excluding only uses that are 'farfetched, illusory, impractical, or merely experimental.'" (our emphasis)

Finally, the Grokster team insists that infringing and non-infringing uses may exist in any ratio:

"By its plain terms, the Sony rule protects products regardless of whether illegitimate uses predominate at some moment (which can change drastically over time)."

Or indeed at all moments:

"The Court barred liability as long as the product is 'widely used' without infringement - which says nothing about whether other uses predominate. The Court then lowered the threshold for protection still further: the product need only be 'capable of substantial non-infringing uses.' That standard, highlighted by the dissent, precludes any predominance inquiry..."

We'll see how the Supremes take to being told what they may and may not consider in less than a month's time. ®

Related stories

Supreme Court to probe P2P in March

Kazaa trial opens with 'massive piracy' claim

Grokster touts 'legal, licensed' p2p music share system

MPAA asks Supreme Court to crush P2Pers

Court tells RIAA and Congress to let P2P software thrive

Grokster, Morpheus face MPAA in appeals court

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