file sharing stupidity

The US Supreme Court decision is remarkably stupid, or at the very least extremely inconsistent.

Justice Souter said ""We hold that one who distributes a device with the object of promoting
its use to infringe copyright…is liable for the
resulting acts of infringement by third parties."  (As quoted here)

In other words, those who produce file sharing software are responsible for illegal things done with their software.

How about if I rephrase it as "We hold that one who distributes a gun with the object of promoting its use to shoot people is liable for the resulting shooting of people by third parties"?

Does all use of software for malicious purposes then possibly make liable the creators or distributors of that software?  What about using Visual Basic to create viruses, or Microsoft Word to write extortion letters?

8 Comments

  1. Rob...:

    You appear to have missed the qualification which you quoted:

    “with the object of promoting its use to infringe copyright”

    It’s not the producing/distributing of the software that’s the problem, it’s the promoting of it for sharing copyrighted files.

  2. Laura:

    I do understand the qualification, hence my example about guns. The other examples I am suggesting are by way of extension to the extreme of the argument…

  3. Douglas Clifton:

    If this sort of thing interests you, at least in terms of US law, I would recommend checking out:

    http://loadaveragezero.com/app/drx/Software/Open_Source/Licenses#pk:public

  4. Paul:

    The full quote was:

    “We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties,”

    This means the required elements are:

    - distribution of a device;
    - the aim of the distribution is the promotion of its use for an *illegal purpose*
    - that promotion to be shown through clear expression or other affirmative steps.

    In your gun example, the act of shooting a gun is not necessarily an illegal act (target shooting, police, self defence etc). For the gun company to be liable, it would have to promote the use of a gun to shoot someone illegally. This promotion would require clear expression or other affirmative step.

    If a gun company advertised its product as being great for shooting random pedestrians, or they supplied it free to LA’s gang bangers, or the only purpose for which guns existed was an illegal purpose, then I think you would find that a Court would quite readily find them liable.

    Cheers

  5. Laura:

    That’s a better argument - however - do you feel that it was clearly established that Grokster promoted the use of their software for illegal purposes? Where does the line lie between promoting it for legal and illegal purposes?

    The EULA for Grokster includes
    “PLEASE NOTE THAT GROKSTER RESPECTS THE RIGHT OF COPYRIGHT OWNERS AND IS FULLY COMMITTED TO PROTECT THEIR RIGHTS. GROKSTER EXPECTS ALL GROKSTER DESKTOP USERS AND GROKSTER WEB SITE USERS TO DO THE SAME. WE, THEREFORE, ASK YOU TO PAY SPECIAL ATTENTION TO AVOID VIOLATING COPYRIGHT LAWS AND REGULATIONS. AS A CONDITION TO USE THE GROKSTER PRODUCTS AND SERVICES, YOU MUST AGREE THAT YOU WILL NOT USE GROKSTER TO INFRINGE THE INTELLECTUAL PROPERTY OR OTHER RIGHTS OF OTHERS IN ANY WAY. UNAUTHORISED COPYING, DISTRIBUTION, MODIFICATION, PUBLIC DISPLAY, OR PUBLIC PERFORMANCE OF COPYRIGHTED WORKS IS AN INFRINGEMENT OF THE COPYRIGHT HOLDERS’ RIGHTS.”

  6. Paul:

    To be honest, I haven’t seen enough of the case from unbiased sources to draw a conclusion in that regard (i was arguing more on the principle rather than the case at hand), but I will say that the EULA could quite easily be seen as the token gesture that it is.

    To torture the guns example further, if the gun manufacturer provided the guns free to gang members, but wrote on the cardboard box that “Beretta respects the rights and life of rival gang members, and as a condition of use of Berettas products you must agree not to bust a cap in the ass of any played-out sucka that disses you”, then it would be unlikely to stand up in court.

    P2P software defenders suffer from the rather large problem that the overwhelming use of P2P software is for piracy. To make more convincing arguments regarding the promotion of software for legal purposes, they need to identify and articulate those legal purposes a lot more effectively than they have so far.

  7. Douglas Clifton:

    More info, and a statement from Public Knowledge:

    http://www.publicknowledge.org/issues/grokster

    ~d

  8. Douglas Clifton:

    OT: Laura, have you considered adding some sort of visual break or heading between each post? From a user’s standpoint, it’s difficult to distinguish when one comment ends and another begins. Sorry to be a pest, just thought I’d point this out. ~d

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