Library Journal talks to me about Grokster
Library Journal, the leading trade publication for American libraries, carries a short interview with me about the fallout of the Grokster case.
In a stunning, unanimous decision, the Supreme Court in the case of MGM v. Grokster recently ruled that companies can be held liable for copyright infringement if it can be proven they intentionally induced infringing activities. LJ's Andrew Richard Albanese caught up with author and copyright expert (and LJ Mover & Shaker) Siva Vaidhyanathan to examine the ruling.LJ: Just when I thought digital copyright couldn't get more complicated, the Supreme Court gives us intent. Is this a novel construct in the realm of copyright?
SV: The idea of inducement of infringement, which requires intent, is imported from patent law. As it turns out, the basic principle that inducement curbs -- that is the idea that a technology with substantial non-infringing uses is exempt from contributory infringement -- was also imported from patent law. But that does not mean that creating an inducement principle is a good idea. Things could get messy in the world of technology development and deployment. Rigging something new out of something old -- hacking code, in other words -- could subject a person to lawsuits. For a couple of decades technologists have been able to invent stuff with little anxiety that copyright holders would come after them for the things that their customers do with their products. That's all about to change.
LJ: The American Library Association (ALA) found a silver lining, noting that Betamax was preserved. But how will this ruling likely play?
SV: The ruling was not a disaster, but it was bad, nonetheless. It will do nothing to curb infringement, but it will employ a lot more copyright lawyers. Companies and users will be worrying and wondering if they are contributing to others' infringement activities. They will hire lawyers to tell them if they are. The lawyers will urge caution. And we will all pay a price for the things that never got invented or marketed. There will be a chilling effect on innovation, without a doubt.
LJ: In your last book, The Anarchist in the Library, you looked at the impact of peer-to-peer technology. How might you update that book in light of this ruling?
SV: This ruling is modest and unrevolutionary. It's mostly going to be an annoyance. I'm afraid that the real, big, global battles to rein in flows of information through technological policy will continue in other forums, mostly through international treaties and trade policy. That's where the action is now. I've been busy writing about the globalization of copyright for my next book.
LJ: The lower court seemed to disagree fundamentally with the Supreme Court in this case, noting that the market usually solves its own disruptions, while the Supreme Court said that may be impossible in this case. Which is right?
SV: They are both right. When new technologies extend and amplify old behaviors, people in power get shaken up. It may seem impossible to protect copyrights in the new technological context. But every time the copyright industries have screamed "the sky is falling," the sky failed to fall. Some firms failed, practices changed, expectations changed, social norms changed. But copyright has continued to work for a couple of centuries despite doomsday stories every few decades. We can save copyright -- the good stuff about copyright -- if we invest in honest dialog and education about why it's important. Copyright is only in danger because big media companies don't actually believe in it.
LJ: What positives can we take from this ruling? Best-case scenario?
SV: The best-case scenario is that technology companies all do what Apple does now. Every time you buy an iPod, you have to peel off a label that winks at you, "Don't steal music." Yeah, right. If that's all it takes to avoid liability, then we can continue to enjoy all the cool gadgets around us.
LJ: Worst case?
SV: The worst-case scenario involves a series of lawsuits against libraries and universities for doing what we have done for centuries: induced infringement. Face it: I can't do my job without encouraging or requiring my students to make unauthorized and unlicensed copies of copyrighted material. I induce infringement every day. A more likely scenario, which is almost as bad, involves a series of lawsuits against Google and the Wayback machine for caching copyrighted web pages and inducing infringement by their users. That could have a major chilling effect on everyone who seeks information.