The Pragmatics of the Grokster Decision

Matt at tries on some clear thinking about the Supreme Court decision in the MGM vs. Grokster case:

From what I can tell, this is a fairly narrow decision with nuance. The Supreme Court seems to have ruled that a company cannot promote an illegal use for a technology. Those same kids writing lean little p2p applications for assignments will create on their own. If they go ahead and say “hey, use this to steal,” then they risk feeling that ominous chill of the man breathing down their neck (or is that “the heat?”). If an entity does is, then it can be held accountable for such use, says the court. This is not the same as saying that if a technology is misused or has an illegal use that then the entity that produced is liable, and I think the line is pretty clear.

I think he’s on the right track. While it would be nice to have a clear umbrella decision like the Betamax one, very few Supreme Court rulings are ever that clear. And this one does not say that Grokster is guilty, just that the case may proceed to determine if it is.

Of course, this is the problem with the law, in general. While the Supreme Court is the court most likely to run on clearer principle, it’s still hemmed in by the constitution as interpreted, the laws and written, and custom.

While on the surface Court rulings seem to disallow particular behaviors and actions, they also frequently provide clear instructions on how to avoid breaking the law while achieving similar goals.

Following Matt’s logic, it could be just a matter of the developers behind a P2P technology to be very careful in how they promote and market their tech.

Keep in mind that this case goes after a particular for-profit company, which is trying profit off this technology. Things do change when the tech is developed by volunteers, especially if they’re anonymous and/or from outside the US, especially if the marketing issue is the most defining.

I’m not cheering this decision, but I think it’s important to recognize that we’re all stuck in a pragmatic compromise of having to thrash through thousands of screwed up laws everyday, and somehow most of us figure a way to cut through the maze.