In response to an interesting comment, I thought I'd post a few thoughts about the meaning of "promoting" or "inducing" copyright infringement. A similar question was raised on SCOTUSblog:
What would a responsible lawyer tell Apple about “Rip. Mix. Burn.” after today? Does that clearly promote infringement?
First, though, I should point out that Grokster is a US judgment, and is not binding in the UK (though it is likely to be persuasive for any courts over here, and in any event most of the major P2P networks are based on technology distributed by US companies). I am not a US lawyer, but there is some clarification in the Grokster judgment of what amounts to an illegal inducement to infringe. This would include "clear expression or other affirmative steps taken to foster infringement" or "purposeful, culpable expression and conduct", such as "advertising an infringing use or instructing how to engage in an infringing use".
On the other hand, it would not include "mere knowledge of infringing potential or of actual infringing uses" or "ordinary acts incident to product distribution, such as offering customers technical support or product updates".
In the Grokster case, the Court stated that "the classic instance of inducement is by advertisement or solicitation":
"Proving that a message was sent out, then, is the preeminent ... way of showing that active steps were taken with the purpose of bringing about infringing acts."
Examples referred to in the judgment include:
- messages sent to Napster users advertising OpenNap;
- distributing "an electronic newsletter containing links to articles promoting [Grokster's] ... software's ability to access popular copyrighted music";
- "responding affirmatively to requests for help in locating and playing copyrighted materials"; and
- "indications of unlawful purposes in ... internal communications and advertising designs".
Where this leaves "Rip. Mix. Burn." I'm not sure, though given the success of iTunes I'd be surprised to see the record companies sue Apple in the near future.
As an endnote, the case has brought out some heated opinions about the future of copyright. Bill Thompson, speaking for "the side of a new copyright settlement", thinks that:
"We’re just living through a period of change in which the old order [i.e. one that enforces existing copyright laws] still has sufficient political power to get its way in legislatures and courts."
On the other hand, Andrew Orlowski writes in The Register:
"But this [i.e. the view favouring an "as-yet-uninvented and no doubt "emergent" compensation system"] isn't a world view shared by the public, who have little hesitation in handing over money to compensate artists. So to be blunt, the dweebs simply need to get out more."
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