Dan Gillmor expresses a common sentiment on the Grokster ruling. Innovation, Gillmor suggests will be the casualty. I really couldn't disagree any more.
The opening paragraph of the 24-page opinion of the court says in part:
We hold that one who distributes 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, is liable for the resulting acts of infringement by third parties.
Throughout the opinion Justice Souter seems to take great pains to detail that the issue in question here is not that a pair of companies came up with software that could be used for legal and illegal purposes. The issue is that two companies not only produced software that could be used in multiple ways, but that they actively marketed the software for uses that infringe on companies copyrights.
Reliance on Sony
Gillmor and others seem to make light of the court's careful efforts to both reaffirm the court's early Sony decision and contrast it with the specifics of this case.
"Got a Tivo? DVD recorder? Better take care of those. They may become collectors items, or contraband, depending on how strictly courts apply this line of thinking," says Eamonn Sullivan from the United Kingdom, (though there is no explanation on his site how the case impacts those in London).
These analogies definitely read into the decision things that are not there. Let's take for a moment the example of the gun industry. Let's say the Supergun company comes out with a new gun, the HOS Killer. The HOS Killer is marketed as the Head of State Killer, an assassin's best friend. Not only this but they ship a user's manual that describes how to setup an ambush and use the enclosed file to remove serial number of the gun. Little doubt can exist that Supergun would be held at least partially liable for the assassination of heads of state as a result.
It seems incomprehensible to me that Grokster and StreamCast won't be put out of business by the damages when this case is heard. At the end of the day I'm not likely to loose too much sleep over a couple of companies who flaunted the law and were called on it. Nor am I concerned that a couple of bad apples are about to spoil the batch of innovation to come. iPod is a perfect example of a technology that has substantial non-infringing uses that has not been marketed as a way to break the law and does not profit from its customers who happen to ignore the company's admonition not to steal music.