METRO-GOLDWYN-MAYER STUDIOS v. GROKSTER

Rod Dixon, J.D., LL.M. rdixon at cyberspaces.org
Thu May 1 11:22:19 UTC 2003


Please excuse this is slightly off-topic post, but I thought the members of
this list might find it interesting to think about how copyright issues in
some cases indirectly impact open source. After reading the Grokster
opinion, I have a couple of thoughts relevant to open source that I would
like to share. The long version is posted here:
http://www.cyberspaces.org/webzine/
The short version is below.

In the on-going online copyright war, a United States district court in
California recently granted motions for summary judgment in favor of
Grokster and Morpheus (but not Kazaa, who defaulted judgment). Essentially
and in plain language, the battle was won by peer-to-peer software
publishers and lost by Hollywood's movie and music industry and contrasts
somewhat with the battle fought in the Napster case, where the result was in
the reverse.

...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.

Second, the Court implied that an additional reason why proprietary software
distributors could not be held contributorily liable is due to its presumed
inability to modify the software in a manner similar to what was required in
Napster to decrease or eliminate infringing uses of the p2p software. This
conclusion is at odds with the open source software developement model,
where licensees may become distributors of software who do have access to
source code and, therefore, could not claim a lack of access to source code.
If the Court's distinction is found pertinent, the Grokster case strikes me
as oddly similar to the Netcom case in how the case promotes disincentives
to defendants of indirect liability claims...in this case the disincentives
flow against the interests of open source software distribution. Proprietary
software makers could structure their business to split distribution and
development in the manner the Court found favorable to a finding of no
indirect liability, while open source developers, quite ironically, would be
left with a disincentive for development as well as distribution of
technologies like Gnutella.



- Rod







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