Cory Doctorow

R.I.P.:

RIP, MIX, BURN

On June 27, the Supreme Court issued its decision in Grokster vs. MGM, a lawsuit over the legality of peer-to-peer networking. The decision creates a new form of copyright liability that goes to the heart of what MAKE is all about: making cool stuff out of other stuff and sharing it with the world.

The Grokster case was about “secondary” liability. If you make a tool that allows your users to infringe on copyrights — like a camera, pencil, VCR, or the internet — should you be held liable for their actions? The granddaddy of secondary liability cases was the Betamax decision, which was handed down in 1984, when the studios argued that the VCR should be made illegal because it would Napsterize the movies that were aired on broadcast TV (yes, they claimed this!).

The court then found that the VCR was not illegal, nor was any technology “capable of sustaining a substantial non-infringing use.” That is, if your technology could be used for non-infringing purposes (say, recording the copyright-free congressional wrangles on C-SPAN), then it was legal to build it. Your customers might still be on the hook if they got caught making infringing copies, but it wasn’t your responsibility.

Betamax stood us in good stead for more than 20 years. The knowledge that any technology that could be used for good was legal to build gave makers the certainty to develop, capitalize, and sell or distribute all kinds of tools from printers and scanners to Microsoft Outlook to the Google Toolbar.

But as the majority of internet users seek an endrun around the entertainment industry’s price fixing, limited back catalogs, and antiquated delivery mechanisms by means of P2P systems, the entertainment companies have tried to create a new kind of secondary liability — for inducing your users to infringe copyright.

This is thoughtcrime. If Alice and Bob both build identical VCRs, but Alice advertises that you can use her VCR to duplicate copyrighted movies while Bob merely winks knowingly and lays his finger alongside his nose, Alice faces liability and Bob doesn’t. Grokster and its codefendants were accused of this kind of thoughtcrime. Napster was sued into oblivion, found guilty on the grounds that they’d had the ability to control their users, so they couldn’t find refuge in the Betamax defense. Grokster and the other post-Napster P2P companies set out to deploy P2P systems that lacked this control: systems built on technology like Gnutella, where the people who deploy the software have no way of knowing what users are downloading or searching for.

But the Supremes found that since the architects of these systems had hoped that their users would download infringing songs — because they targeted ex-Napster users — they were guilty of inducing infringement.

The court saw their intention to attract 70,000,000 Napster users as evidence that they had intended to induce the infringement — even though Napster itself has since been bought out by record labels who are marketing a new service (also called Napster) to those same users.

If you’re a maker, this is scary news. With every word you utter, every email you write, every IM you send, you’ve got to make sure you never breathe a hint of any expectation that your users might infringe copyright. Apple couldn’t get away with “Rip, Mix, Burn” under this standard.

In 1984, the Supremes’ Betamax decision gave every tinkerer and garage startup a gift: an easy-to-understand standard for which all kinds of products are lawful in the marketplace. That gift paid a dividend: 20 years of innovation, encompassing everything from the PC revolution to the internet. This year, they took that gift away with the Grokster decision: an impossible-to-gauge standard that makes your technologies’ uses secondary to your state of mind when you sat down at your workbench.

Cory Doctorow (craphound.com) works for the Electronic Frontier Foundation (eff.org), co-edits boingboing.net, and has written several novels.