I've been reading up about the Supreme Court's decision regarding entertainment industry lawsuits targeting file-sharing companies. I wasn't sure what to make of it at first, but after reading a number of reactions I have to conclude that it was the correct decision.

Many, including blogging friend and fellow North Dakotan Tom Simpson, are upset because they feel that this ruling will put us on a slipper slope toward internet service providers being held responsible for the child pornography their customers download or gun makers being held responsible for the crimes committed with their products. While I certainly feel that those are valid concerns I think the Supreme Court ruling does a pretty good job of drawing a line between instances where a perfectly legal product is used in an unlawful way and instances where products are being designed to break the law.

In support of that, take this from the Court's ruling:

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, going beyond mere distribution with knowledge of third-party action, is liable for the resulting acts of infringement by third parties using the device, regardless of the device’s lawful uses.

The tension between the competing values of supporting creativity through copyright protection and promoting technological innovation by limiting infringement liability is the subject of this case. Despite offsetting considerations, the argument for imposing indirect liability here is powerful, given the number of infringing downloads that occur daily using respondents’ software. When a widely shared product is used to commit infringement, it may be impossible to enforce rights in the protected work effectively against all direct infringers, so that the only practical alternative is to go against the device's distributor for secondary liability on a theory of contributory or vicarious infringement.

Now consider these facts about the nature of Grokster and other file-sharing services:

1. All of these companies have known since they distributed their product to the public, or have been made aware of the fact since, that their services are being used to distribute more content that is in violation of copyright law than anything else.



2. Many of these companies, after Napster went down, actively billed themselves as an alternative to that service. They sold themselves to the public as a place where you could still get music without paying for it.



3. All of these services make money by selling advertising space to users who are engaging in an illegal activity.

In summary, Grokster and companies like it are providing a means by which some can engage in unlawful activity. They are aware of this unlawful activity and are doing nothing to stop it. Instead, they are profiting from it. I don't see how any reasonable person who looks at the facts in this case can say that holding Grokster complicit in the crimes of its users is unreasonable.

As for the ruling being applied unjustly in other areas, I don't think it will be. Grokster is very much aware of the fact that its product is being used for illegally distributing protected content, and they've done nothing to stop it. Can the same thing be said of an internet service provider? I don't think so. Not unless that internet service provider were made aware of the crimes committed by its clients and not only refused to prohibit it but actually moved to profit from it.

To put it simply, there is a very easy way for companies to protect themselves from this kind of lawsuit: Be watchful for copyright violations. When they occur, do what you can to stop it. If you can't stop it, recognize that even the most innovative and useful technology must be created and sustained within the framework of legality.

Technological advancement is important, but not that the expense of intellectual property rights.