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.