To Share or Not to Share, That's the Question

I originally wrote this entry on August 26, 2004, and published it on blogs.sun.com.

On August 19, 2004, the 9th Circuit Court of Appeals had ruled in the Grokster case that the makers of peer-to-peer software were not responsible for what users do with their network. The list of plaintiffs vs. defendants is quite interesting to review. Here are some significant paragraphs from the BBC report on the case:

In their ruling, the judges said the case had parallels with older cases which said video recorders should not be banned just because some people put them to illegal ends.

"History has shown that time and market forces often provide equilibrium in balancing interests, whether the new technology be a player piano, a copier, a tape recorder, a video recorder, a personal computer, a karaoke machine, or an MP3 player," wrote the judges in their opinion.

The judges said it should be up to Congress rather than the courts to change copyright laws.

One factor that led the US court to rule in favour of Grokster and StreamCast was the lack of central servers that co-ordinate file-swapping activity.

In the past Napster's use of central servers led the same court to call for that network to be shut down.

"Today's decision should not be viewed as a green light for companies or individuals seeking to build businesses that prey on copyright holders' intellectual property," said Jack Valenti, MPAA chief executive.

This is a reasonable analysis.

Only a few days later, on August 26, 2004, reports said that U.S. FBI agents had raided five homes across America as part of the government's first federal crack-down on file sharing networks. The five peer-to-peer file sharing hobs raided in Wisconsin, New York and Texas operated on Direct Connect software. DoJ siezed equipment but made no arrests, reported the BBC.

The DoJ raid seems to be somewhat at odds with the Grokster ruling. In other words, DoJ is breaking up an "innocent" private network rather than arrest or punish anyone misusing it. Perhaps, an arrest will lead to legal arguments where the concept of fair use will have to be finally settled in more detailed outlines.

Richard Posner has written briefly on the interaction of technology and law in the Grokster case as well as on fair use.