While reviewing the possible fate of peer-to-peer file swapping networks, the U.S. Supreme Court is now said to be studying a copyright law element that might allow the justices to focus any decision on a purported middle ground of companies that actively encourage copyright infringement.
That idea cropped up in 2004 when Capitol Hill debated the so-called Induce Act, a Senate bill that would have held accountable a peer-to-peer network or other content provider who “intentionally aids, abets, induces, or procures” copyright infringement. The text of the bill continues that while the intent “may be shown by acts from which a reasonable person would find intent to induce infringement based upon all relevant information about such acts then reasonably available to the actor, including whether the activity relies on infringement for its commercial viability.”
The Institute of Electrical Engineers supported that idea, saying it turned the legal test of infringement to the actual behavior of the P2P network or content provider rather than what third parties did or didn’t do. That question is a key to the case of MGM v. Grokster, in which the movie industry wants P2P networks Grokster and Morpheus specifically to be held liable for their users’ copyright infringements, a desire rejected by a federal judge and a federal appeals court.
Among those watching the Grokster case are TitanMedia, the gay adult entertainment company that has fought its own rearguard action against P2P swappers. Titan has taken the route of approaching Internet service providers quietly and working to get them to keep their customers from swapping Titan product, without having to take the alleged swappers to court or exposing them. Titan counsel Gill Sperlein was unavailable for comment before this story went to press.
That strategy contrasts with the routes of the mainstream movie and music industries, which have gone to litigation against suspected multiple file swappers directly and in very high profile court actions.
Last week’s Supreme Court hearings in the case showed justices unwilling to let new P2P companies use infringement as “a kind of start-up capital,” as Justice Anthony M. Kennedy phrased it. But Kennedy and other justices, particularly Justice Stephen Breyer, seemed sensitive to the computer and tech industry’s fears that the Grokster case could provoke an atmosphere in which technology itself triggers litigation almost by definition, and even if developers bring forth new products having nothing but lawful use in mind.
"Given that there are conceptually excellent uses of this technology ... does actual inducement take care of [the problem]?" Breyer asked a federal attorney who argued for the entertainment companies.
Patent law recognizes “inducement” when you produce a product and offer instructions on how to use it to violate other patents or encourage infringement. Courts thus far have not used that idea for setting major copyright precedents, according to some legal analysts, but the IEEE and other groups filing with the Supreme Court in the Grokster case are said to believe that might be the best way to let modern technology and copyright share equal consideration.
Technically, the Supreme Court’s primary concern in the Grokster case is summary judgment on the question of whether Grokster and Morpheus themselves were guilty of direct infringement, particularly considering that the lower court findings that they weren’t because they don’t maintain databases of swappable materials themselves. But some, like Electronic Frontier Foundation attorney Fred von Lohmann, fear the high court might want to weave the inducement issue into any Grokster/Morpheus ruling.
"That's my big worry, that the court wants to recognize some inducement claim,” said Lohmann, whose group represents Morpheus parent StreamCast in the current case. “Then we face another 15 years of litigation to figure out what that means.”
