RIAA reacts badly to court's file share ruling

In handing down his decision, Judge Stephen Wilson of U.S. District Court in Los Angeles declared that these services do not have direct control over the files swapped on their networks. Without evidence of their active and substantial contribution to the infringement, he wrote, the file-trading services cannot be held liable.

The judge wrote: "Grokster and Streamcast are not significantly different from companies that sell home video recorders or copy machines, both of which can be and are used to infringe copyrights".

The RIAA was predictably unimpressed and plans to appeal the ruling. RIAA CEO Hilary Rosen said "Businesses that intentionally facilitate massive piracy should not be able to evade responsibility for their actions."

The judge's mention of video recorders was particularly relevant as it refers to the principal case law of Sony Corporation of America et al. v. Universal City Studios, Inc., et al. of 1983-84 (details here).

In that earlier ruling, the recording of television programs for later viewing was deemed not to infringe copyright. The judge held that "noncommercial home use recording of material broadcast over the public airwaves was a fair use of copyrighted works and did not constitute copyright infringement, and that petitioners could not be held liable as contributory infringers even if the home use of a VTR was considered an infringing use."

The summary of the case, provided by the court, stated that the judge rejected the respondents' theory that supplying the "means" to accomplish an infringing activity and encouraging that activity through advertisement are sufficient to establish liability for copyright infringement.

It continued: "… there is no precedent for imposing vicarious liability on the theory that petitioners sold the VTRs with constructive knowledge that their customers might use the equipment to make unauthorized copies of copyrighted material. The sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is WIDELY USED [my caps] for legitimate, unobjectionable purposes, OR, indeed, is merely CAPABLE OF SUBSTANTIAL NONINFRINGING [my caps] uses."

The majority decision by the court also pointed out that many products that are readily available could also be used to infringe copyright. They stated "Selling a staple article of commerce -- e. g., a typewriter, a recorder, a camera, a photocopying machine -- technically contributes to any infringing use subsequently made thereof, but this kind of 'contribution,' if deemed sufficient as a basis for liability, would expand the theory beyond precedent and arguably beyond judicial management."

As for the RIAA appeal, I fully expect that the RIAA will argue over the degree of non-infringing use of these file-sharing services. That will place them in a difficult position because neither Grokster nor Streamcast use any form of central records on their own computers (as did Napster), but given the track-record of the RIAA it will not be short of assertions.

What makes this judgment even more interesting is the implication for ISPs. This judge has effectively ruled that those who have no direct control of the use of their services cannot be held responsible for any misuse of those services. This decision could easily force a rethink of the notion of ISPs being held liable for defamation, racism, pornography and so on.

At last we seem to have a judge who is prepared to say that liability falls on those using the web and not those providing the service - something that has been long overdue in my opinion. µ

See Also
RIAA piracy arguments, figures just don't add up
It's time for the RIAA to sing a different song