June 28, 2005
Shocking Revelations About BitTorrent
By Mark Schultz
Ernie Miller has discovered a circa 2001 cybermanifesto in which BitTorrent creator Bram Cohen declared himself a "a technological activist" who "further[s] my goals with technology. I build systems to disseminate information, commit digital piracy, synthesize drugs . . ." (emphasis added). Ernie has determined that the cybermanifesto appears to have been posted around the time Cohen was first working on BitTorrent. [Update: Bram Cohen has revised his site to say that the manifesto is a parody, first posted in 1999] In the words of an esteemed philosopher, "D'oh!"
This appears to be the work of a young man (he would have been about 26), written in the Estimated Prophet style of serial cyberdeclaration writer John Perry Barlow. I've written things I wish I could take back in the digital era, but I'm glad my own days of impetuous youth were drawing to a close by 1994. An aggressive lawyer suing Cohen and BitTorrent, Inc. would (will) be sure to make the most of this statement.
The question is, just how much can be made of this statement? Ernie Miller asks: "How far will a lawsuit under the active inducement standard as articulated in Grokster go with this statement? Will this open the door to discovery? Will this make the addition of search engine (with advertisements) look like a bad act? Will it make trackerless BitTorrent look like a bad design decision?" Those are all great questions, probably of some concern to Bram Cohen and his friends. I wish him well, especially since he has created wonderful and beneficial technology, apparently with the best of motives, notwithstanding this one particular statement.
I don't have the time to consider and offer my answers to all of Ernie's thoughtful questions. I would like to make one point: There is a difference between Bram Cohen and his company, BitTorrent, Inc., and BitTorrent the technology. The fate of BitTorrent as a technology should not depend on Bram Cohen's intent in developing it. I think that if courts develop the Grokster standard the "right" way (the way I would like), they will draw a distinction between the acts of people and technology. Like the old saw about guns and people, we should say that technology doesn't commit infringement; people use technology to commit or induce infringement. Technology should not be suppressed just because a particular developer or distributor induced infringement. The rare exception to this principle would be a piece of technology (e.g., a satellite descrambler) that has no substantial non-infringing use. (Of course, Justice Ginsburg and two other justices disagree with this interpretation of Sony (Footnote 1 of the concurrence)).
A positive development from Grokster would be to move the focus of the contributory liability debate regarding technology from how end users employ technology to the actions of its promoters. Sony has caused too much focus on how the technology is used by end users after the fact. While actual or potential use of technology by end users is a reasonable basis for a safe harbor from liability, it can be a troublesome basis for imposing liability. After the fact, use-based tests for liability, like Judge Posner's cost-benefit balancing test in Aimster suppress innovation by making life incredibly dangerous for developers. You don't know if you are liable until you see what people do with your product, and if that use changes, you could later become liable. The Grokster inducement standard is more likely to create certainty, because one's liability is based on one's own actions.
The unfortunate thing is that the Grokster opinion leaves room for a plaintiff to bootstrap inducement from the later actions of end users. If the standard evolves in this direction, it will be harmful. We must avoid this "bootstrap effect" to maintain access to innovative technology. Even if Bram Cohen had "bad intent" in developing BitTorrent (I don't think he did), all subsequent distributors of BitTorrent should not be accountable for his actions or the actions of some end users. Such a distributor should be able to avoid liability, so long as substanstatial non-infringing uses are possible and the distributor does not actively induce infringment.
Grokster starts out just fine with its discussion of what amounts to "inducement," drawing on patent law (pp. 17-18). The opinion runs off-track, however, when it assesses the sufficiency of the evidence below to survive summary judgment (pp. 21-22). The opinion outlines three categories of "evidence of intent" to induce infringement.
The first is advertising to the identifiable market for infringing uses. That's fine -- that is inducement, plain and simple, and that's all the evidence you should need. If you've got it, case closed.
My problem is with the second and third. The failure or refusal to implement filtering tools might, as the Court says, be evidence of "intentional facilitation," as might Cohen's 2001 advocacy of digital piracy, but it is NOT evidence of intentional inducement. If I leave my keys in the car every time I parked it that would be evidence of intentional facilitation, but it is not evidence of intentional inducement. Similarly, evidence that Streamast and Grokster make money by selling ads to people based on the volume of largely infringing uses may prove that defendant intended the infringing use, but it does not prove intentional inducement.
The whole discussion of "intent" is misplaced. The only thing that has to be intentional is the inducement. See Manville Sales, 917 F.2d at 553 ("The plaintiff has the burden of showing that the alleged infringer’s actions induced infringing acts and that he knew or should have known his actions would induce actual infringement."); Warner-Lambert, 316 F.3d at 1363 ("To succeed on this theory, a plaintiff must prove that the defendants’ ‘actions induced infringing acts and that [they] knew or should have known [their] actions would induce actual infringement.’"
In short, it is irrelevant that the defendant intended to facilitate infringement; and it is irrelevant that the defendant intended to make money from infringement. The only thing that is relevant is whether the defendant intended to induce infringement; and the only kind of unintentional inducement is inducement to do something that you didn't know was infringement, e.g. an inducement on the mistaken belief that the alleged infringement was fair use. The Federal Circuit Bar Assoc. Model Patent Jury Instructions make this clear:
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More here: http://furtherreflection.blogspot.com/2005/06/grokster-porting-inducement-from.html
Posted by: John Noble at June 29, 2005 06:11 PM