METRO-GOLDWYN-MAYER STUDIOS v. GROKSTER

Greg Pomerantz gmp at alumni.brown.edu
Thu May 1 19:08:50 UTC 2003


> ...There are two troubling issues that arise from the Court's conclusion.
> First, the Court is drawing an implicit distinction between software
> developer and software distributor/publisher with regard to whether indirect
> liability should attach. I am not sure that this is a wise distinction or
> one that is warranted. The Court's examples of Sony VCRs and "Xerox" copiers
> do not seem consistent with the Court's distinction; Sony and Xerox
> manufactured and distributed the products at issue.

This is not my reading of the case. I think the key point is here:

> If either Defendant closed their doors and deactivated all computers
> within their control, users of their products could continue sharing
> files with little or no interruption.
MGM v. Grokster at 24.

On the other hand, Napster's "site and facilities" were necessarily
implicated in every infringing transaction, "affording it perfect
knowledge and complete control over the infringing activity of its
users. If Napster deactivated its computers, users would no longer be
able to share files through the Napster network." MGM v. Grokster at 24.

On the vicarious liability point, the Court explains that there is no
obligation of a software developer to enhance their software in a way
that enables it to block infringing uses --

> Plaintiffs argument that Defendants could do more to limit the
> functionality of their software with respect to copyrighted works
> forgets the critical distinction, broached above, between the Napster
> system and the software distributed by Defendants.
MGM v. Grokster at 31.

> Defendants provide software that communicates across networks that
> are entirely outside Defendants control. In the case of Grokster,
> the network is the propriety FastTrack network, which is clearly not
> controlled by Defendant Grokster. In the case of StreamCast, the network
> is Gnutella, the open-source nature of which apparently places it
> outside the control of any single entity.
MGM v. Grokster at 32.

The main point here is that infringement happens when the software is in
the end-users' hands, and the court wisely recognizes that such use is
beyond the control of the developer and the distributor of that software
-- in contrast to the Napster situation where infringement happened
only through the continued operation of the Napster centralized index
servers. This ruling doesn't strike me as bad for Gnutella at all. In
fact, if anything, it may slightly favor open source networks over
proprietary networks where one entity really does have some measure of
control (perhaps through an automatic update facility).

take care,
Greg

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