I've been trying to follow the Grokster commentary, though I'm sure I've missed a lot. I was moved to respond by Tim Wu's confidence that iTunes would have nothing to worry about if it came out with "Rip. Mix. Burn." today. As I understand it, he sees iTunes as safe-harbored by Grokster because it uses encryption to avoid infinite filesharing and has a deal with the music industry, which presumably shows good faith as well as making a lawsuit unlikely in the first instance.

Basically, though Tim's analysis, as always, makes interesting reading, I think he's conflating iTunes with the iTunes store. As others have pointed out, one fills one's iPod mostly with music that isn't purchased from the iTunes store -- I am a heavy iTunes store user, I suspect, and I have slightly under 300 songs in my "Purchased Music" sublibrary, out of a total collection of over 6700 songs.

"Rip, Mix, Burn" promoted iTunes, not the iTunes store. "Rip" only matters if you have CDs, since purchased iTunes files come preformatted for iTunes. Purchased, DRM-protected music can't be shared without either circumvention or quality-diminishing re-encoding, but iTunes does nothing to limit massive distribution of all those mp3s it encourages you to rip from your own collection (or download from others' to fill that nice big iPod). There is no encryption on ripped files, no deal with the record industry on ripping, and I just don't see which "safe harbor" helps immunize "Rip, Mix, Burn" in particular. This is not important for iTunes, since as a business matter Apple is unlikely to get sued. It's important for the next music player startup that doesn't happen to have music deals in place already, that maybe wants to make money just through the player without having an associated music store.

This really matters, though, for the next industry; we know a lot more about what the digital music industry will look like in the future than we do about digital video.

Of course if anticircumvention technologies are deployed successfully, it might not matter much at all, since they provide an easy workaround for all this kerfuffle about contributory infringement.

This is a copy of what I posted at SCOTUSBlog's Grokster discussion:

While I was not involved in Grokster, I do have a clear bias: Justice Souter, for whom I clerked, is the very model of a thoughtful, committed and careful jurist, and thus I am inclined to support any proposition he endorses. (Though maybe not his apparent appreciation for Modest Mouse.)

That said, I am concerned that not every court is as careful as Justice Souter – this was a problem with his opinion in Campbell v. Acuff-Rose, which quite clearly says that satire can be fair use (though it has comparatively less advantage in the fair use analysis than parody does) but which has widely been overread to say that parodies win fair use defenses, but satires don’t. I fear that similar uncertainties will follow the Grokster ruling. In fairness, though, I can’t imagine a plausible majority opinion that wouldn’t leave many thorny questions.

The previous posts have made a number of excellent points which I’ll try not to reiterate, though I adore Kathleen Sullivan’s image of “strangling little iPods in their cradles.” I don’t quite get Charlie Petit’s idea that the Betamax involved “authorized source material and authorized distribution channels” whereas Grokster doesn’t. Except for unreleased pilots such as “Global Frequency” and bootlegs, the music and TV shows available through peer-to-peer networks came from authorized source material and authorized distribution channels (CD stores and broadcasts). Then they got moved to forms the copyright owners didn’t authorize and couldn’t control – a lot like TV shows got moved to blank videotapes.

This leads into my big questions: What would this opinion really have meant for the VCR? Would “See any TV show you want to, anytime you want to see it” or “build a library” count as enough obvious encouragement of librarying – which was not found to be fair use – to justify a finding of contributory infringement? (I’m still looking for a copy of the “build a library” ad, unfortunately.) What about “any TV show” in the context of pay cable, which again was not analyzed as fair use when the Court looked at time-shifting free broadcast TV?



Moving onward, what would a responsible lawyer tell Apple about “Rip. Mix. Burn.” after today? Does that clearly promote infringement?



How about Sourceforge, which distributes Azureus, a major BitTorrent client? Let me make clear that Sourceforge offers BitTorrent software, not torrents or files – it seems to me trivial even in the pre-reversal 9th Circuit to establish that sites hosting unauthorized torrents are contributory infringers. Sourceforge is not such a site. It offers only the peer-to-peer technology, naked and pure. Except: drill down into the description on the site a bit, and you get this: “The RSS Feed Scanner is an automatic RSS feed parser which is highly configurable and allows unnattended operation via its advanced filtering capabilities. .... The filter strings can be easily edited via the graphical configuration tool, and each filter can also support targeting of specific episodes within a series of the same titles (for example in downloading episodes of shows).” So maybe not so pure after all. Maybe this means that Sourceforge is a black hat, despite initial appearances, or that this particular plugin is inherently infringement-promoting. I would definitely not rest easy tonight if I ran Sourceforge.

Another question is whether the decision, which is explicitly targeted at “devices” including software, will have spillover effects on non-device-related conduct. Already in the Napster/venture capitalist litigation and in the Canadian P2P litigation questions have been raised about whether someone who enables sharing of files on her computer is encouraging infringement by those who download those files. If all she does is enable (or fail to disable, depending on how her file-sharing software is configured) uploading, has she done enough to be liable for others’ infringement? This may not be all that important if the copyright owner’s right of distribution is broadly defined, but the scope of the distribution right remains unsettled.

Relatedly, I’ve long wondered whether this PBS lesson plan, which encourages the creation of unauthorized derivative works and even their dissemination on the Internet, constitutes contributory infringement. That page has plenty of “solicitation that broadcasts a message designed to stimulate others” to create unauthorized copies (slip op. at 20). Many people will, of course, think that most or all of the resultant art is fair use – but fair use is not usually what people want to rely on when copyright owners’ lawyers come around. If I encourage you to create mash-ups of existing songs, believing that at least some of the time the results will be fair use, have I induced infringement if, some of the time, the results are infringing?

Justice Souter doesn’t get into this question, because Grokster conceded that unauthorized copying using its software would be infringement, but it could become important for other technologies, including a future “Rip. Mix. Burn.” campaign.

The fan fiction discussion is now available as a mp3 file here. I come in near the end, about 3/4 of the way through. It was an interesting discussion, though I wish we'd gotten to talk more about post-Star Trek developments, particularly shows and movies that do have strong central female characters.

Still hoping for an archived source for the Open Source radio show, which was quite interesting -- we spent more time on Star Trek fandom than I'd hoped for, but I have forgotten what it's like to introduce an audience to the subject, and Star Trek is always a helpful way in. One thing I wished I'd gotten to say about Lee Goldberg's position that fan fiction shows disrespect for creators' intellectual property -- he compared it to another person giving "your children" "attitudes you never intended or wanted." Which to me sounds a lot like raising a real child -- they come from us, but they aren't us, which is alternately a source of joy and despair. I'm going to be writing a piece for a book on IP and gender about the "work as child" metaphor. What fascinates me is that the metaphor has persisted and still seems persuasive to many even as the persuasiveness of the original claim to ownership of one's children has faded. It takes a village to raise a child; it takes an interpretive community to create a text.

Naomi Novik and Francesca Coppa, two very smart women, will be talking about fan fiction on Open Source Radio tonight from 7-8, as noted here. You can stream the show, which is a live, call-in show, here. The call-in number is (877) 673-6767. I am supposed to do a portion of the show sometime after the halfway mark, focusing on legal issues; anti-fan fiction writer Lee Goldberg is also supposed to participate.

You can be a Jedi or a Sith in the Star Wars online game, but you can't make music because of copyright concerns. So you can play a musician character, but only perform a few pieces of music. Sounds like a pretty boring job.

I'm not really sure why LucasArts and Sony Online wouldn't qualify as ISPs and therefore be able to avoid infringement liability through standard DMCA models. Allowing people to play individual notes, which they could in theory turn into infringing performances, seems a lot like allowing people to type individual letters, which they could in theory use to retell The Da Vinci Code in the game, the same way that performance artists recreated an episode of "Friends" in Quake. Am I missing something?

As a side note, I read this story because I personalized my Google page. I'm trying to figure out how Google changes the way schools and libraries should think about information provision, and how copyright law will influence or inhibit those changes. The basic question for me is, in a world where every hard drive is a library, what should the law say about libraries as distinct from other entities? (As Theodore Sturgeon asked: If all men were brothers, would you let one marry your sister?)