- The Supreme’s Grokster v MGM decision will mean a lot of things to a lot of people. But what about open source?
Corante’s Ernest Miller suspects we’re likely to find out.
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Grokster and Open Source: Will Open Source Force the Court to Confront Sony? By Ernest Miller - Corante
Up to now Hollywood has been satisfied in going after the commercial purveyors of P2P filesharing software. Undoubtedly, following the Grokster decision, they will continue to do so. However, that will not halt the use of P2P programs.
As the commercial systems are shut down, it is likely that users will migrate to open source P2P projects. Indeed, a switch to various open source programs, such as BitTorrent, is already well under way. If Hollywood desires to continue to stem the tide by taking action against certain programs, they will have no choice but to go after the most popular open source projects.
Vicarious liability would not seem to be much of an issue for most open source programs. They don't directly profit from (and I doubt a court would recognize reputational benefits for this purpose) illicit filesharing and I'm unaware of any that has the right and ability to control use. Standard contributory infringement would also be relatively difficult to prove on a number of levels, assuming the device met the Sony test.
But active inducement changes things, especially as the Court was rather unclear on how it was to be applied. The problem for many open source technologies that would meet the Sony test is that they receive contributions of code from a wide variety of sources. The most well-organized projects have a vetting process so that they do not incorporate copyrighted or patented code. However, how are they to vet for intention?
When you've got a large number of people working on a filesharing project, it is likely that one of them will say things that would be evidence of inducement. Furthermore, the Court spent a great deal of time emphasizing Grokster's lineage from the original bad actor Napster. That was plenty of evidence of ill intent for the Supreme Court. How might that logic be applied to the numerous progeny of Napster in the open source world?
I really don't know. There are a number of ways that a court could potentially handle it and it would be very fact-dependent, I think.
One possibility I do see, however, is that an open source project may ultimately force the Court to confront Sony directly.
In Grokster, the Court "kicked the Sony can down the road". They didn't address what it really meant and came up with an alternative theory of liability, active inducement. Active inducement seems well-suited to bringing down many commercial projects, but it could have difficulty with open source.
Although an active inducement case would be relatively easy to bring against an open source P2P project, I believe, I could also see a Court dismissing such a claim for a variety of reasons. Such a decision would be very fact-dependent, but having dismissed active inducement, the only chance to shut down a particular project would be to find that the program failed the Sony test.
Such a case would then force the Court to make a decision about the limits of Sony.
