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June 28, 2005
What Happens to BitTorrent After Grokster?
By Mark Schultz, Assistant Professor, Southern Illinois School of Law
Thanks to Eric for the chance to guest blog here. And congratulations to Eric for predicting the decision right. He called it about a month ago--I was there, under a tree in front of the lodge at Zion National Park.
Now that the Supreme Court has spoken in Grokster, many are eager to know what happens next. Not what’s next for Grokster and Streamcast. They are yesterday’s news, doomed to be overwhelmed by phalanxes of music industry lawyers. No, the question is what will happen to BitTorrent, the next-generation filesharing program that one study claims now accounts for the majority of file sharing traffic and 35% of all Internet traffic.
BitTorrent and its creator, Bram Cohen, should be just fine. Some services that use BitTorrent to promote infringing file sharing for commercial gain, like the now defunct Suprnova.org, are most likely in trouble. The difference in results points to one fortunate aspect of today’s decision. The Court’s holding focuses on “bad actors,” not “bad technology.” In that respect the safe harbor of Sony still stands. (Whether the prospect of having to defend oneself as a “good actor” will stifle technological development is a subject for another post or a law review article).
Why are BitTorrent and its creator okay? I've researched BitTorrent's development for a forthcoming article on copyright and the jam band community. Jam bands are bands like the Grateful Dead and its vast and diverse progeny who allow fans to record concerts and exchange the recordings legally. Cohen has said he developed BitTorrent in response to the needs of his friends in the jam band community who were legally downloading shows. One of the earliest version’s of the BitTorrent FAQ indicates it was being developed for legal trading by "etree" (the online community at the center of the jam band world). The FAQ reads:
“BitTorrent's customer is etree. Etree is a loose-knit community of people who distribute live concert recordings online. They never charge money, and only distribute recordings of bands which give permission. Etree suffers from not having nearly as much upload offered as there is download demand, a problem BitTorrent is intended to solve.”
From what I have been able to determine, the files used to test BitTorrent during development were legally shared jam band files. Cohen’s innocent intent is significant under today’s ruling.
Today, the Court held that one could be liable for contributory infringement if for “distribut[ing] a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement.” The Court pointed out three notable pieces of evidence of intent: (1) Grokster and StreamCast attempted to capture and aggregate Napster’s vast audience of known infringers; (2) They did not attempt to filter infringing material; and (3) Their business model was based on making money by showing banner ads to large numbers of people. Cohen and BitTorrent (as a technology) come off looking pretty good.
First, BitTorrent looks far better than Grokster and Streamcast under the Sony standard. What the Sony standard is after today will be the question for some time. It appears that Justice Breyer and two others would definitely excuse a product like BitTorrent as there is a substantial non-infringing use (etree). One presumes that Justice Souter and two others probably would, or else they would have followed Justice Ginsburg’s lead in promoting a version of Judge Posner’s Aimster balancing test.
Under Justice Ginsburg’s more demanding formulation (which appears to have only 3 votes), BitTorrent might be in trouble. Would Justice Ginsburg go this far? Her opinion dismissed the evidence of the band Wilco using Grokster et al to distribute Yankee Hotel Foxtrot as merely anecdotal. (One would think that Yankee Hotel Foxtrot would have taught people to stop dismissing Wilco, but that’s another story.) Would she dismiss etree so quickly? Yes, BitTorrent is massively used to pirate movies, but the non-infringing use of BitTorrent is also substantial. It was developed for the jam band community for legal usage, and continues to foster thriving, well-policed legal usage in that community. I would hope that if faced with BitTorrent, Justices Ginsburg, Kennedy and Rehnquist would see one of the messages of today’s decision: Technology doesn’t commit infringement; people commit (or induce) infringement.
So, would Cohen and the other original BitTorrent developers be on the hook as inducers? Probably not. There appears to be no “clear expression or other affirmative steps taken to foster infringement.” With respect to the three key facts cited by the Court, they are quite different from Grokster and Streamcast’s developers. They did not attempt to aggregate or capture a pre-existing group of infringers. Quite the contrary, as they said “BitTorrent's customer is etree,” a group of law abiding . . . Deadheads. They were not trying to make money by showing ads to infringers. While they did not attempt to filter infringing material, I would argue that the original intended users (etree) monitor torrents for legality and still do (banning the i.p.s of violators).
In sum, Bram Cohen and the original BitTorrent (as a technology) look pretty safe post-Grokster. BitTorrent's unique history and the existence of the etree community are great protection.
Sites like the now defunct Suprnova, most likely are not. Such sites add a commercial layer on top of BitTorrent (banner ads). The commercial layer is not the problem; the problem is that they drive traffic by linking to infringing torrents. They also promote the presence of infringing torrents via ads and paid search engine placements. In short, they are the sort of bad actors that today’s decision wishes to reach.
UPDATE: Ernest Miller notes that I should address the new trackerless BitTorrent and BitTorrent search created by Cohen. He was right. So I did here.
UPDATE 2: See here for further blogging on "shocking" revelations about BitTorrent.
Posted by Mark Schultz at June 28, 2005 09:26 AM | Copyright , Derivative Liability
Comments
Now that the decision has sunk into my brain a little further, I have started wondering what facts from the Betamax case would have shown that Sony took "affirmative steps taken to foster infringement.”
I don't have all the facts from Betamax; all I have read is what is in the opinion and dissent.
That being said (that I am fairly clueless), I highly doubt that Sony didn't have (tons of) discoverable, internal documents that would show that they took "affirmative steps ... to foster infringement." Sony knew what they doing; same as Grokster, et al.
In fact, didn't the Grok opinion reference (maybe I grabbed this from somebodies' commentary) that Sony had writing on the Betamax box that promoted copyright infringement (if read a little more liberally)? Even so, I am sure Sony had marketing documents that discussed what they should say.
It just seems to me that Sony promoted Betamax close-to-as egregiously as Grok. And, saying that, "oh, but Betamax had a clear fair use in timeshifting" doesn't satisfy my thought process.
Posted by: Matthew Goeden ![[TypeKey Profile Page]](http://blog.ericgoldman.org/nav-commenters.gif)
at June 28, 2005 12:51 PM
Matt, you might take a look at Rebecca Tushnet's posting--she has some great thoughts on this.
http://www.scotusblog.com/discussion/archives/2005/06/more_questions.html
Eric.
Posted by: Eric Goldman at June 28, 2005 01:58 PM
One thing that is missing here is the necessity of something like bittorrent to support podcasting. publishing large numbers of mp3 files takes a huge ammount of bandwidth, and bittorrent allows that to scale with the size of the audience, not the pocketbook of the publisher. It is already built into most ipodder-type clients, and more and more podcasts are relying on it to keep from breaking the bank. Some smaller software publishers also use it to support downloads so that they don't get overloaded when demand peaks. It's actually a very good tool from the standpoint of network infrastructure, as well as being particularly democratic.
Posted by: tsayin at June 29, 2005 10:18 PM
Something that has been missing in the discussions I've read is what seems to me to be a fundamental difference in architecture between BT and the others that have preceded it.
Cohen is the developer / distributor, so in that sense he is caught by the Grokster choice of language, but he is not the operator of the resulting network in the way Grokster et al are. If I'm right, the only way that Grokster can be used by an individual is to plug in to the larger network. On that network, some people infringe and fewer people don't. But it is one integral network - operated / sponsored / created / profited from by one entity, even though there is no central server. The Grokster case requires acrobatic leaps in logic concerning the passive or active nature of the inducement precisely because it is one integral network.
But I thought BT was different. The "network" one plugs into is largely driven by the content one is seeking, and the uploader alone is responsible for that one single act without which there can be no issue about the use of the technology. It's easy to use Bit Torrent lawfully, and to use it in a discrete instance that does not function alongside illegal use. The developer is not operating / sponsoring / creating / profiting from the illegal use. Others may be - eg the Suprnovas of the world.
The Grokster case's language - "distributor of a product" - is unfortunate precisely because the "product" is such a malleable concept, dependent as it is on the architecture of the app/network for any functional meaning. And the term "peer-to-peer network" is equally dependent upon the architecture of the app/network for its meaning. Grokster et al were designed they way they were to avoid the Napster problem - a network that could easily be taken down by legal process. The idea was that if the network was fully distributed, the operators could hide behind Sony and the practical difficulty of enforcement. Given the architecture and the integral nature of the network's operation, those terms made sense, I suppose - there is, in a sense, a unitary relationship between the developer / network and the propensity for infringement.
But BT is different - it's not one instance, if I'm right. One can deploy it for an entirely lawful purpose entirely separate and removed from any unlawful use.
And it seems to me that should make all the difference in the world.
Would be interested to know your thoughts.
Posted by: Rob Hyndman at June 30, 2005 03:15 PM