Thursday, October 18, 2007

Grokster rides again?

On Wednesday 17 October the latest court decision on the saga that was MGM v Grokster was handed down by Judge Stephen Wilson. The LA Times has a nice succinct report.

" The twisting path of MGM vs. Grokster (the entertainment industry's lawsuit against the companies behind the Grokster, Kazaa and Morpheus file-sharing programs) took another fascinating turn today. As only fanatical followers of this case may know, two of the three sets of defendants -- the companies connected to Grokster and Kazaa -- settled with the movie studios, record companies and music publishers not long after the Supreme Court ruled that p2p software companies could be held liable for inducing infringement. But StreamCast Networks, which distributes Morpheus, couldn't strike a deal with the labels and studios, so it fell to U.S. District Judge Stephen V. Wilson to apply the justices' opinion to that portion of the case. He did so a year ago, finding that StreamCast was, in fact, liable. But he did not immediately grant the plaintiffs' request for a permanent injunction, wondering aloud at a hearing how to craft an injunction that did not block non-infringing uses of Morpheus. Today, Wilson finally granted the injunction (Download the pdf here), but with caveats that will keep StreamCast in the game at least temporarily."

He's asked Streamcast to add filters to the Morpheus p2p software at the heart of the dispute but stopped short of demanding they do everything within (and out-with) their power - as in the ICraveTV case - to stop piracy. He also said the onus was on the music industry to identity the files they wanted blocked and to provide proof that they own the copyright on that music. The judge has agreed to oversee Streamcast's compliance with the order, so we can expect to see a few more trips to his courtroom by music industry lawyers complaining that StreamCast are not fulfilling their obligations with p2p co responding in kind. In crafting a carefully thought out compromise he's given himself a guarantee of an ongoing series of ear aches from both sides.

He also encourages Morpheus users to upgrade to the filtered version of the software.

Judge Wilson had ruled in favour of Grokster when the case originally appeared before him, citing the 1984 US Supreme Court's MGM v Sony precedent indicating that technology - in that case the Sony VCR - should not be banned if it had substantial non-infringing uses. The case was appealed right up to the Supreme Court and they basically side-stepped MGM v Sony when delivering the Grokster decision in June 2005 by introducing an "inducing infringement" test. Substantial non-infringing uses is no longer a get-out clause for technologies that can be used for illicit copying, especially if the behaviour of the creator or distributor of the technologies can be interpreted as encouraging or promoting the use of the technologies in such a way. So though Grokster and KaZaa have long since settled ( in the wake of the Supreme Court decision) the legal ripples from the case will continue for some time.


Anonymous said...

Well done - may be you will give us your thoughts on the 167 page Usenet Complaint?

Ray said...

I haven't had the chance to look over the record companies' complaint against Usenet though I understand via commentary at TorrentFreak that they're citing the Grokster decision as one of the foundations of their case.

If they can produce clear evidence of persistent behaviour, on the part of the Usenet controllers, encouraging copyright infringement by users, they might win.