The entertainment industry just won't quit trying to kill perfectly legal technologies with substantial non-infringing uses. Back during the big legal fight over Grokster, the RIAA insisted that it had absolutely no interest in stopping technologies people used to record things. In fact, Consumer Electronics Association CEO Gary Shapiro reminded them of this promise after the RIAA went after XM Radio's device to record broadcasts. It appears that the RIAA has no problem continuing to go against its word. Its latest move is to send a letter to CNET, asking it to remove tools from Download.com that can be used to record videos from YouTube. Of course, there a tons of legitimate uses for such tools. Just as you can legally record shows off of TV (thank you Supreme Court), you should be able to record stuff on YouTube (related: shame on Google for blocking such tools as well).
Of course, from the parts of the RIAA's request that have been made public by Greg Sandoval at CNET, it sounds like the RIAA isn't directly making a legal threat (which would be tough, given CNET's role as a fourth party service provider for third party tools which might be used to infringe), but rather appealing to its parent company, CBS, arguing that because such tools and their substantial non-infringing uses might also be used to record CBS content (again, just like the VCR), that they should want to put an end to them.. Thankfully, it sounds like CNET has no interest in complying.
However, given the RIAA's promises during the Grokster case that it had no interest in blocking such technologies, it seems that, once again, the RIAA has been shown as liars who have no compunction about blocking perfectly legal technologies, just because they haven't figured out how to adapt to modern times.
As you can see from the ruling, LimeWire never really had a chance. It basically did everything that Grokster did (and potentially more), so under the Grokster ruling, it's a pretty open and shut case. Of course that doesn't mean this isn't troubling in many ways. In fact, it reiterates many of the problems with the original Grokster ruling. For example, it mentions things like the fact that LimeWire folks knew that LimeWire could be used to transfer copyrighted works. But that's meaningless. Email can be used for transferring copyrighted works. FTP too. The web as well.
Either way, I'm still wondering if, based on the Supreme Court's ruling in the Grokster case, which solidified this non-legislative concept of "inducement" for copyright infringement (something that Congress had chosen not to put into the law -- despite having the opportunity), if it's possible to create a system for more efficiently sharing files that doesn't violate the inducement standard. In most of these cases, part of the problem is that these sites advertise themselves for the ability to infringe on copyrights, and employees at the sites were active in helping users infringe. As such, you can see how that's clear inducement. But what if a site was set up that didn't do all of those things, but was still widely used for infringement. Would that still be inducement? If so, that seems incredibly troubling. The law should not be set up in a way to outright ban a technology that has a wide variety of useful applications, and is used for plenty of legitimate purposes, even if it's also used (even if regularly used) for infringing purposes.
Michael Carrier, a law professor specializing in intellectual property law, was kind enough to let us know about a paper he recently wrote
analyzing the Swedish court's ruling in The Pirate Bay Case, and seeing how the reasoning set forth might apply to two other services: Grokster and Google. Grokster, of course, was a key player in a similar US lawsuit, that eventually resulted in the service shutting down. While many believe that the Supreme Court said Grokster was illegal, in reality, the ruling on the case only found that Grokster could be liable as a third party. Grokster itself settled before the lower court could rule on the issue, though co-defendant Streamcast was eventually found liable.
Carrier's analysis suggests that the Swedish ruling over The Pirate Bay did not go into nearly enough detail on why it made its ruling. Many of the explanations are quite vague, and could be broadly applied to other services. The most interesting part of the paper looks at how Google would fare under the same conditions -- and it finds that while Google has some distinct differences from The Pirate Bay, one could read the ruling in such a way that it absolutely would apply to Google as well -- which has troubling implications. At the very least, it suggests that the Swedish court did not fully understand the technology or the implications of such a ruling, and was more influenced by the fact that it seemed like The Pirate Bay must be bad, and therefore decided to support that in the ruling. But without carefully highlighting why The Pirate Bay is different than Google, the ruling is too vague and potentially dangerous.
Many people think that the Grokster lawsuit ended with the Supreme Court ruling over two years ago. However, that's not the case. The Supreme Court was simply ruling on an aspect of the case (whether software providers were liable for what their users for doing) and then sent the case back to the lower court to then review its original decision. Grokster, whose name the case is most identified with, shut down, but Streamcast was also involved in the case and it decided to fight on, claiming that it did not "induce" infringement, and therefore was not guilty of copyright infringement. Unfortunately, the judge wasn't convinced and still found the company guilty. Since then, there's been an ongoing process of determining just what the punishment should be. The judge clearly hoped that Streamcast would make life easy by settling, but the company is nothing if not persistent in standing by its various lawsuits. Ed Felten points out that the judge is now trying to carefully weigh the punishment options for Streamcast, which seems rather odd, because it's pretty clear that no matter what the punishment, Streamcast is done. There's basically no way for the company to stay in business after losing this case, so Felten can't figure out why the company would keep fighting this -- though, the longer it stays alive, the more chances the RIAA has to claim yet another victory over the company.