July 3rd, 2005 by Unsuspecting Innocent
Here’s the first change that I’ve seen due to the Grokster decision. Bonpoo is a service that lets you send large files to other people. It used to be general-purpose; you could send anything to your friends. Now, post-Grokster, they only let you send photos:
At bonpoo we are constantly testing file transfers services that help people send legal files across the Internet. Given the recent Supreme Court decision we have suspended our free file transfer services except for photos. We apologize for any incovience. Please check out our professional product HeavyMail for an alternative to our prior service.
June 27th, 2005 by Unsuspecting Innocent
Grokster didn’t win, but I think the Supreme Court preserved one of the most important ideas from Sony: the technology itself is not illegal, it’s the way it’s promoted and used that’s illegal.
I thought the structure of the decision was interesting. We have a unanimous decision written by Justice Souter that completely ignores the Sony test. Then, there are two concurring (but totally opposite) opinions by Justice Ginsburg and Justice Breyer arguing about the correct interpretation of Sony. Fundamentally, Ginsburg and Breyer read the very text of Sony in different ways.
- Ginsburg implies, “The time-shifting and library-building(?) uses of the Betamax were found to be fair use; therefore, a significant number of [potential uses of the Betamax] were non-infringing, so Sony was not liable.” In Grokster, we have “no finding of any fair use and little beyond anecdotal evidence of non-infringing uses.” Ginsburg calls on Grokster to show that “a reasonable prospect that substantial or commercial non-infringing uses were likely to develop over time.”
Ginsburg seems to completely eviscerate the “capable” part of the “capable of non-infringing uses” test. She seems to imply that if time-shifting and library-building were not fair use, then Sony would have been liable. After all, there is no way that Sony could have predicted the billion-dollar market success of pre-recorded home videos as a reasonable prospect of a substantial non-infringing use.
- Justice Breyer, on the other hand, reads the Sony decision as formulating the “capable of non-infringing uses” test and then applying it. Even if library-building and time-shifting were not fair use (and given that only 9% of VCR use was “authorized”), Sony would still not have been liable. Breyer likes the “capable of non-infringing uses” test because it’s forward-looking and doesn’t prematurely cut off technology.
These are totally different readings of Sony. I don’t think there’s any way to reconcile them. We could have guessed at Ginsburg’s reading when she made this objection in oral argument:
There is a statement — one could take it as clear — “capable of substantial noninfringing use.” That would be very clear, I agree. But Sony goes on for 13 more pages. If the standard were all that clear, it would have stopped there. … Or if you then read back, as a careful reader would, then you find the statement that the primary use of the Sony machine for most owners was time-shifting, a use that the Court found either authorized or fair, and, hence, noninfringing.
Well, that’s the last word. How will our world change now?
June 27th, 2005 by Harlan Yu
Majority opinion by Justice Souter; concurring opinion by Ginsberg (joined by Rehnquist and Kennedy); concurring opinion by Breyer (joined by Stevens and O’Conner).
June 27th, 2005 by Ed Felten
The Supreme Court ruled today, by a 9-0 margin, that Grokster’s actions were illegal. I’ll post a link to the Court’s opinion here once it’s available.
June 24th, 2005 by Ed Felten
The Supreme Court has said that it will announce decisions in all remaining cases, including Grokster, on Monday June 27.
Class members, feel free to post here about the decision if you get the urge.
For news about the case, and pointers to online discussions, check out my blog.
June 20th, 2005 by Ed Felten
Don Snyder’s post predicting the outcome of the Grokster case was quoted in the New York Times today.
May 3rd, 2005 by David St. Hubbins
I believe that the Supreme Court correctly decided, in the case of United States v. American Library Association, that the Children’s Internet Protection Act does not facially violate the First Amendment guarantee of free speech. However, acknowledging this fact leaves open the important policy questions of whether requiring filtering of pornography in libraries is a good idea, or if there are certain ways of accomplishing the Act’s goals that are clearly preferable to others.
I agree with the majority’s analysis in U.S. v. American Library Assn. that the mere inclusion of internet access in a library does not create an open forum (which would hold any abridgments of free speech in libraries subject to strict scrutiny). The argument that libraries have a compelling interest to protect children from pornography – common ground amongst even the dissenting Justices, and probably most parties who would enter this argument from either side – is a convincing reason to enact something like CIPA. However, given that libraries are not public forums, such a strong argument in favor of CIPA is not even necessary. Libraries have the discretion to choose what information they make available to the public without violating First Amendment standards. They are not required to shelve every conceivable print resource that an author or patron might like to see available, so why should the internet be any different? I find arguments that the internet is, by its very nature, different from the print resources that libraries provide – and thus expected to be less subject to censorship and regulation – unconvincing. Indeed, a library could choose not to provide internet access at all, in the same way that it might not provide access to subscription cable television or radio broadcast facilities for patrons. In the case of the internet, this would surely not be the best policy for striving to meet a library’s goal of making information available to the public, but a library that chose to do so would be, barring other rules and restrictions, within its rights.
Some have argued that while CIPA may be constitutional, it is just not good policy to restrict access to the internet in the ways that filtering technology does. To the extent that filtering technology “overblocks,” thus preventing library patrons’ access to non-obscene material or otherwise inhibiting their web browsing experience, I agree with this position. However, it would seem that the provision of CIPA allowing for disabling of filtering software upon request does much to weaken objections on these grounds. For those unsatisfied with this solution –because a user might be too embarrassed, ignorant, or otherwise unwilling to request that filtering technology be disabled – I believe that a user profiles approach has much to offer. It does not seem unusual that a library might require patrons to sign up for internet access. In such an application, users could sign up for either a “child” or an “adult” account, or otherwise indicate the degree of blocking they wished to have on their own library internet access (to prevent minors from escalating their privileges, a parent or guardian could be required to cosign the application). In this manner, libraries would not have to maintain an unreasonably high number of user accounts – such as, say, in the case of one account per cardholder – but could still allow for some profile-based tailoring of users’ internet experiences and avoid the problem of instituting strict filtering as the baseline condition for web access.