What's Next? Does it Start with "B" and End with "itTorrent"?
We might not see much activity after Grokster from the entertainment lawyers. One of the side effects of the Grokster decision is that for now, the copyright holders' industries aren't seeking more protection from P2P networks via Congress. The INDUCE act is pretty much dead, for now. Randy Picker sees that having a side effect. "They have that political capital to reinvest in the Broadcast Flag."
Lichtman sees vulnerability in BitTorrent, but again, not a willingness to sue. "Could they go after BitTorrent? Yes. Would it help their bottom line? Probably. Would they win? They might." But the music industry has taken quite an image hit from the heady days of defending artists' speech before Congress to suing a 12-year-old showtunes fan. In the wake of Grokster, many people believe that institutions like the RIAA and MPAA (Motion Picture Association of America) will want to take a break from litigation to mend fences. Lichtman, for one, thinks the next few years will see the copyright holders taking a cue from the success of the iTunes music story and invest more of their time and money in creating legal alternatives to unauthorized file sharing.
But what if they did decide to go after the coders? Both sides of the debate see Grokster as opening the door for a suit against the world's most popular engine of file sharing. Randy Picker and Doug Lichtman believe this opinion leaves open the possibility of looking at how a technology works and making guesses as to what went on in the mind of the designer. Wendy Seltzer of the EFF disagrees. "If the opinion says one thing clearly, it is that the design of a product alone can't be used to infer intent," she says. So who's right? That's the kind of thing the courts will be settling over the next few years.
Lichtman has also called the opinion a "hollow victory" for copyright holders, pointing out that you could build a tool for infringement, and if you never admitted that was what it was for, copyright holders could never prove you had bad intent. BitTorrent's creator, Bram Cohen, has repeatedly said that BitTorrent not only wasn't created for illegal file sharing, but isn't any good for it, since it affords users no anonymity. But Cohen may not be totally airtight, depending on how much or how little is required to prove intent. In a 1999 parody called "A Technological Activist's Agenda" Cohen claims to "build systems to disseminate information, commit digital piracy."
The backlash from his joke came right on the heels of Grokster, and Cohen had to make public announcements that it was only a joke, folks. (For instance, Bram Cohen doesn't actually create systems to synthesize recreational drugs, as the document also claims.) It disturbs many technologists to think that any errant comment can bring them under scrutiny. And indeed, most people think that Cohen's claims about the purpose of BitTorrent override the implications of a parody written two years before he started the project. But the BitTorrent waters are muddied; even Cohen beta tested BitTorrent's capacity for passing large files with a copyrighted porn preview DVD.
Supporting the fence-mending idea, the MPAA has said repeatedly that they are interested in working with Cohen rather than suing him.
Playing it Safe
Often lawyers have advised their corporate clients to avoid some of the trouble of litigation with document retention policies, a legal term for a document destruction policy. If you destroy all the company email over X days old, you aren't actually guilty of destroying evidence, as long as that's your standing company policy. Could such policies protect smaller companies and open source projects from being sued over inducement? Litchman says if you're thinking about document retention, it could be time to re-examine your motives. "I certainly don't want to go on record saying destroy documents; if you do the right thing hopefully you have nothing to hide." Even Fred Von Lohmann, who has for years told geeks of all stripes not to talk about any possible illegal uses of their creations, doesn't see document retention as a solution in the tech community, especially open source. "Geeks are data packrats... If I have to delete all my email before I commit to a CVS, I'm just not going to commit to that CVS." In fact, as much as a well-formed policy can protect you and your wallet, a badly structured document retention policy can get you in more trouble by making it look like you were destroying evidence.
What's the practical advise for someone building a new technology right now in America? Picker says simply, "The cleaner your motives are, the better off you probably are." Lichtman goes a bit deeper. If your technology either passes files out of your control or leverages something you believe to be fair use, try and view it objectively to decide if it's really a tool of infringement. "Better yet, run it by an objective third party. I'm sure some of the people at Grokster talked themselves into believing what [their customers were doing] was a fair use."
From Von Lohmann's perspective it's a bit too murky to say what's safe until all this gets worked out in the courts. Lichtman jokes, "If you've got a lot of money, it would be great to establish what exactly is fair use in the courts."
Realistically, the safest thing is just to not build another file sharing program in America until a bit more of this is all worked out. It might be a good time to work on that tagging app you've been thinking about.
Quinn Norton is a writer and photographer whose work has appeared in Wired News, The UK Guardian, Make Magazine, Seed, and more.
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