Grokster

Inducing Consumers to Infringe

Metro-Goldwyn-Mayer Studios, Inc, et al, v. Grokster, Ltd, et al. (referred to here as Grokster) is important to readers of Kairos because it attempts to define how one who is an intermediary/distributor of technology might be held liable for the infringing actions of technology users. If we require web writing, blogging, wiki use, or otherwise provide the vehicle by which students compose, how might we be responsible for the infringing behaviors of our students? On a related note, as web composers ourselves, how might the way we design webspaces be read by a court as "inducing" others to infringe on copyrighted material? With respect to design, what's happened in the Napster, Aimster, and Grokster cases is that the courts have looked to design, finding that if infringing behavior is possible within the use of a space, and that space is "user friendly," the more likely the technology designer will be found liable for the actions of users.

The Grokster case was a natural outgrowth of Napster and Aimster. Napster held that P2P system providers who knew or should have known that the files exchanged on their centralized server were copyright infringing were secondarily liable for the infringing acts of their users. Aimster held that by simply decentralizing the file-exchange configuration, and encrypting in order to be "ostrich-like," secondary (contributory/vicarious) liability was not prevented. Grokster dealt with the situation where no centralized server existed, but the court did not focus on particular encryption technologies. The central issue in Grokster connected the doctrine of "inducement" (i.e., intentionally inducing users of a technology to engage in infringing behaviors) mentioned in Sony and made the determination of inducement central. Inducement derives from patent law, and as an aside, it is interesting to note that the language in our current US patent law, language the courts now base their copyright decisions on in the year 2006, has remained relatively untouched as frameworks since the 15th century when patent law was codified in Venice, Italy (Yu, 2004).

Grokster tested whether companies distributing filesharing services (in this case, Grokster and StreamCast) could be held secondarily liable for the copyright infringements of people using their software to exchange copyrighted files. "Yes, Grokster and StreamCast had some knowledge of infringing uses, but the court found that Grokster and StreamCast (the licensers of the Morpheus software) were not 'merely passive recipients of information about infringing use' of their software. Rather 'each took active steps to encourage [copyright] infringement'; the companies 'promoted and marketed themselves as Napster alternatives.'" (Porter & Rife, 2005). In other words, the companies promoted copyright infringement and sold their services on that basis.

Although the court upheld its position in Sony, reinforcing that mere knowledge that a product or technology might potentially be used to infringe is not a sufficient basis for indirect liability, the court did centralize the determination of “inducement” of infringement, leaving some ambiguity on this important point (Porter & Rife, 2005). Prior to Grokster, the Sony case held that whether or not a technology provider could be held indirectly liable for the infringing behavior of its users depended on whether or not that technology had substantial noninfringing uses (i.e., the VTR was substantially used for legal purposes rather than for copyright infringement). But after Grokster, the central question is now whether or not the technology provider induced users to infringe (not whether substantial noninfringing use exists, although that question is still relevant). The question of substantial noninfringing use alone is no longer central--"inducement” is central.

It is unclear what the fallout of Grokster is at this point for the field of rhetoric and composition; however, what is clear is that in Grokster, the court specifically looked at the rhetorical turns Grokster made in marketing itself in order to find that Grokster could have potentially "induced" consumers into using its software to infringe others' copyrights. This is why these cases are fascinating, not just because of their holdings, but because of what the courts look at when making their holdings. In Aimster the court spent time analyzing a digital tutorial, in Grokster the court looked at how Grokster identified itself as the next Napster. These issues are important to writers who construct the rhetorical in digital webspaces. The court went from reliance on a purely empirical evidentiary construct in Sony (substantial noninfringing use, a rhetoric of "counting"), to a rhetorical evidentiary concept-construct in Grokster (does the provider "induce"?). During the last ten years in these P2P filesharing cases, notions of context, an analysis of which cannot be done without rhetoric, has emerged as the overarching determining factor in whether users are allowed to share. This crystallizes the notion that rhetoric and the ability to conduct rhetorical evaluation of the construction and context of webspaces is more important than ever as we negotiate writing in digitally mediated spaces.

Grokster is now the defining case that sets forth how secondary liability is determined with respect to distributors of reproduction/distribution technologies. In Grokster, the organizations StreamCast and Grokster distributed decentralized P2P technology that allowed users to share files, some 90% of which were determined to be copyrighted works (in Napster, that number was 87%). (Brief of IEEE-USA, 2005, p. 4). The standard now requires courts to look at whether distributors of distribution/reproduction technologies "induced" infringement, but, as mentioned earlier, Sony's safe harbor of "substantial noninfringing use" was not abrogated. Instead, a dual use technology should be evaluated to assure it has substantial noninfringing use, and if so, examine whether the distributor "induced" users to infringe. So the determination of liability has in large part been shifted off of the shoulders of users, and onto the shoulders of organizations like Napster, Aimster, Grokster, and so on.

Figure 1: Sony, Aimster, Napster, and Grokster all focus on the legal doctrine of secondary liability. The legal standard now for determining secondary liability for distributors of dual use reproduction/distribution technologies is "inducement" (a concept from patent law). Inducement, as shown in this diagram, contains an element of intent. The courts have broken intent into actions that are evidenced by “knowledge” of infringing behavior by users as well as “material contribution” to that infringing behavior. Vicarious liability is briefly discussed in Grokster as well, and it involves the issue of control or the duty to control user behavior. Both vicarious liability and contributory liability are components of secondary liability, also referred to as indirect liability. During the last two decades, from Sony to Grokster, the court has greatly refined the definition of secondary liability as illustrated in the diagram above.

 

For rhetoric and composition teachers, many technologies used in the classroom can be used for both legal and illegal purposes. This is clear, for example, with social networking software such as Facebook. Users can post profiles that help them make innocent or even professional collaborations, but they can also post profiles that promote illegal drug use. It is up to teachers to contextualize such digital writing with our students so that they can make critically conscious decisions about how they use everyday technology.

For more information see: Metro-Goldwyn-Mayer Studios Inc., et al., Petitioners v. Grokster, Ltd., et al.(2005).