April 25, 2003  ·  Lessig

I have just finished reading the opinion by Judge Wilson dismissing MGM’s suit against Grokster and Streamcast. The opinion is testimony to great lawyering. The key to the decision is the difference between the architecture of Napster and the architecture of Morpheus. To get a judge to understand that completely takes an extraordinary skill. This was not a case I worked on at all, so I am free to say this: EFF deserves a great deal of credit in this case. As Kapor said at its founding, “Architecture is politics.” Now it is also law.

  • http://www.aaronsw.com/ Aaron Swartz

    It’s an incredible decision. I can just see Cory’s face light up at:

    To justify a judicial remedy, however, Plaintiffs invite this Court to expand existing copyright law beyond its well-drawn boundaries. As the Supreme Court has observed courts must tread lightly in circumstances such as these:

    [...] Sound policy, as well as history, supports our consistent deference to Congress when major technological innovations alter the market for copyrighted materials.

  • http://www.allspaw.com john allspaw

    Yes, excellent work! As I dismantled my webserver research “lab” last weekend and looked for new uses of the linux machines, I thought of the great work they do, and how I hadn’t donated anything to the EFF. So, I donated the machines to the EFF for any use they may have for them. Everyone who can, should donate.

  • J.B. Nicholson-Owens

    I don’t agree with what you’re saying here Prof. Lessig, or I don’t understand what you’re saying. Saying the crux of this case is the difference betwen “the architecture of Napster and the architecture of Morpheus” doesn’t make sense to me. I thought the crux of the case was the difference between file sharing programs versus how they are being used. You seem to be saying the crux of the case is central-location lookups (Napster) versus community cooperative whisper-down-the-lane aggregation of directory info (Morpheus). Is that correct? What am I not getting here?

    The way I (thought I) understood this case, the file-sharing software makers were let off the hook because both programs have sufficient non-infringing purposes that it pays to distinguish between the programs themselves and how they are being used. So, much like the Betamax decision said VCRs can be used for copyright infringement or they can be used for non-infringing tasks, file-sharing programs can be used to copy around Britney Spears’ latest songs or they can be used to share copies of GNU/Linux operating system distributions.

    Please feel free to e-mail me a copy of your followup if you get time to write one. And thanks for helping me understand the distinction you’re making here.

  • http://www.rurnt.com/brian Brian W. Carver

    A couple of things I haven’t seen people noticing about this case. 1) I think Judge Wilson has telegraphed how he will feel about Kazaa, who did not opt for summary judgment. Hint: It doesn’t look good. 2) The way Judge Wilson runs through how Grokster’s not guilty (in part) because it licenses proprietary software that it cannot modify and that StreamCast’s not guilty (in part) because it uses open source software that neither it (nor anyone) can fully control is quite keen. So, I’ve talked about this more at my blog. Stop in for a look.

    I whole-heartedly agree that EFF did some stunning work here. I don’t know much about Judge Wilson, but I cannot imagine he came to this case capable of articulating such fine points of technology as he does in this decision. Nice work!

  • James Day

    The substantial non-infringing uses part does not protect you from the costs of legal notices. To get protection from that you need to make it impossible for you to comply with those notices.

    Next step is to pretect the end users, who can be acted against individually with tens of millions of take-down notices. That can be done by making clients multi-hop proxy servers, so you can’t know whether the machine sending you a contents list or work is the machine which has the work. Maybe build in a guarantee that for a semi-random time after connecting a machine gets no direct information about what is on any other machine.

    It seems crazy to have to design a general purpose search engine to resist this sort of legal process attack but it clearly is required today.

  • http://shumans.com Shuman Ghosemajumder

    Making a distinction between the capabilities of Gnutella/FastTrack systems such as Grokster and Morpheus — which provide only peer-discovery services — and lookup-based systems like Napster, is to create a false dichotomy. Napster was unsuccessful at screening out copyrighted content because it’s fundamentally extremely hard to police a network of millions of users, especially when they’re intentionally renaming files and using other measures to disguise content. Not holding Grokster and Morpheus responsible for the actions of their user’s is correct — but Napster could be held no more accountable. Napster should have been held no more accountable for copyright infringement than any university that carries an alt.binaries.* feed. Perhaps the former case needed the “great lawyering” referred to in your post.