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Grokster: Confusing sin and sinner

Bad can be good - ask Bruce Willis

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Comment This merry band of Register readers (a.k.a. technophiles extraordinaire) surely knows already all about Grokster and StreamCast, two companies that have been distributing P2P filesharing technologies. You also know about the music/movie industry crusade against P2P that ultimately spawned the U.S. Supreme Court decision on Monday in the MGM Studios vs. Grokster case. There, the Court unanimously decided that both Grokster and StreamCast may be sued for inducing copyright infringement. (Under federal copyright statute, the penalty can be anywhere between $750 and $30,000 per demonstrated instance of copyright infringement.)

“Say goodbye to your iPod” is the typical technophile’s horrified response to this judicial ruling. I’m not a pessimist about most things in life. But I’m suffering a gut-level trepidation that Grokster’s reasoning – that is, the rationale for the Court’s decision – means good technology is going to suffer far more than the Court comprehends. To understand why requires looking at the Grokster rationale.

Up until now, the only test of whether a technology inventor or distributor could face legal liability for inducing end-user copyright infringement was the one set down in the 1984 Sony Betamax case. There, the Court had found that Sony’s VCR was capable of “substantial non-infringing uses,” despite the fact that around ninety percent of VCR use at the time infringed copyrights. The Court completely shielded Sony’s VCR from copyright liability.

The abstract principle we can take from Sony is that courts must judge whether a technology in the grand scheme of things will be “good” or “bad.” That judgment is never black-or-white. Even nuclear weapons, which are probably a “bad” invention, have good applications (Bruce Willis taught us how to blow up cataclysmic asteroids with nukes in Armageddon). But what Sony appeared to stand for was that once a court balances the pros and cons of a technology’s various applications and determines that a technology as a whole is “good,” it will not allow victims of the technology to sue the technology distributors or inventors. Instead, victims can only sue “bad” users of a “good” technology.

Flash forward to this week’s Grokster case. The Court found that, unlike Sony, Grokster and StreamCast manifested clear intent to enable copyright infringement. Solely because of their intent to create “bad” technologies, the Supreme Court allowed the companies to be sued by copyright holders.

Yet this result seems bizarre. Allegations of massive copyright infringement notwithstanding, the Supreme Court assumed that the two P2P filesharing technologies are good; technologies under its Sony standard. This means that no matter how much evil (including copyright infringement) Grokster or StreamCast intended their technologies to enable, their attempts to create “bad” technologies failed.

There are ways of punishing evil sorcerers for failed attempts to create bad technology without the decidedly undesirable side effect of quashing their good inventions. The most obvious solution is to strip bad-intentioned inventors of any property rights in a good technology. Indeed, this is precisely what the intellectual property laws of this country suggest should be done. To acquire a patent, for instance, an inventor must attest in good faith that his invention is “useful,” which in part means that he does not intend it for illegal or immoral purposes. If there is clear and convincing evidence that an inventor deceived the Patent & Trademark Office about his innovation’s intended uses, his patent is void because of his “inequitable conduct.” The bad inventor’s good technology then immediately enters the public domain. Anyone is free to develop or distribute it.

We can punish Sinners for their bad thoughts. But don’t destroy their good inventions in the process.®

Chris Guzelian is the Searle Scholar at Northwestern University School of Law. Email him about your own failed attempts to create subversive technology here.

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