Grokster: A “Legal Engineering” Failure
Over at MobBlog, Doug Lichtman has a post bemoaning the legal standard for inducement adopted by the Court:
- MGM won on paper today, but my first reading of the opinion makes me wonder whether the victory will have any bite outside of this specific litigation. Intent-based standards, after all, are among the easiest to avoid. Just keep your message clear — tell everyone that your technology is designed to facilitate only authorized exchange — and you have no risk of accountability.
I disagree with Doug about the normative question–but I agree with his reading of the Opinion of the Court, which brings me to “legal engineering.” Each of the important P2P filesharing cases has involved a failure of “legal engineering”–the legal design of the P2P business. In the Napster case, the failures were the most egregious–with “smoking gun” memos indicating that the purpose of Napster was to faciliate copyright infringement. In Grokster, the failures were almost as bad. Here is an excerpt from the Opinion of the Court:
- It is undisputed that StreamCast beamed onto the computer screens of users of Napster-compatible programs ads urging the adoption of its OpenNap program, which was designed, as its name implied, to invite the custom of patrons of Napster, then under attack in the courts for facilitating massive infringement. Those who accepted StreamCast?s OpenNap program were offered software to perform the same services, which a factfinder could conclude would readily have been understood in the Napster market as the ability to download copyrighted music files. Grokster distributed an electronic newsletter containing links to articles promoting its software?s ability to access popular copyrighted music. And anyone whose Napster or free file-sharing searches turned up a link to Grokster would have understood Grokster to be offering the same filesharing ability as Napster, and to the same people who probably used Napster for infringing downloads; that would also have been the understanding of anyone offered Grokster?s suggestively named Swaptor software, its version of OpenNap. And both companies communicated a clear message by responding affirmatively to requests for help in locating and playing copyrighted materials.
If there had been good “legal engineering,” then Napster or Streamcase or Grokster might well have prevailed in court. Of course, product promotion is a business decision, and it is possible that a deliberate choice was made–pay the price of increased liklihood of legal liability in order to market more effectively by emphasizing copyright infringement. But one wonders whether effective marketing strategies that were more subtle might have been available–if anyone had bothered to try.