By the time MGM v. Grokster hit the Supreme Courtroom, the file-sharing trade had been roiling with lawsuits for years. The document labels had sued Napster in December 1999, baptizing the oughties with a spree of copyright litigation. However the public’s urge for food for piracy didn’t go away, and for each Napster that was sued into oblivion, three extra sprung up as an alternative. Their names are actually commemorated solely within the courtroom selections that finally destroyed them: Aimster, StreamCast, and naturally, Grokster.
The Supreme Courtroom agreed to listen to the Grokster case in December 2004, and oral arguments befell in March of the next yr. The copyright wars had lastly arrived earlier than the justices. The courtroom heard first from Don Verrilli, the lawyer representing a bevy of film studios and document labels belonging to the Movement Image Affiliation of America and the Recording Business of America, respectively. “Mr. Chief Justice, and may it please the Court: copyright infringement is the only commercially significant use of the Grokster and StreamCast services, and that is no accident.”
The primary interruption got here midway into Verrilli’s subsequent sentence, and the volley of questions continued earlier than this case about peer-to-peer file sharing took a pointy flip into what, to a complete outsider, may need appeared like an off-beat query: What’s the distinction between file sharing and the Xerox machine?
However for these following the case from inception, this was, actually, the Large Query. When copyright legislation and the web collide, new applied sciences are inevitably in comparison with outdated applied sciences in a mixture of gut-check and satan’s advocacy. A Xerox permits copying — usually of copyrighted works! — on a mass scale. So do the VCR and the iPod. “Are you sure that you could recommend to the iPod inventor that he could go ahead and have an iPod or, for that matter, Gutenberg, the press?” Justice Stephen Breyer requested Verrilli. After which, in a kind of mischievous asides that he was identified for, Breyer added, “For all I know, the monks had a fit when Gutenberg made his press.” (The viewers tittered in well mannered, pandering laughter.)
The iPod would come up repeatedly all through oral arguments. Although moveable MP3 gamers had been round for some time, Apple’s model had taken the world by storm, partially due to its modern design and excessive capability and partially as a result of it was conveniently linked to the iTunes Retailer, a official system for getting music digitally. But, the exhausting drive area was a nod to the big digital libraries folks might doubtlessly purchase — and even had already accrued — by way of piracy.
They usually didn’t mince round what was taking place throughout the nation. “I know perfectly well I could go out and buy a CD and put it on my iPod,” mentioned Justice David Souter. “But I also know perfectly well that if I can get the music on the iPod without buying the CD, that’s what I’m going to do.” If that was the case, and the RIAA obtained its means, wouldn’t the specter of copyright litigation be hanging over some future Steve Jobs or Jony Ive?
“I don’t actually think that there is evidence that you’ve got overwhelming infringing use,” Verrilli started to answer. Certain, folks have been utilizing the iPod to infringe copyright, but it surely wasn’t with the identical consistency as for a file-sharing consumer, proper? However earlier than Verrilli might end that practice of thought, Souter interrupted once more.
“Well, there’s never evidence at the time the guy is sitting in the garage figuring out whether to invent the iPod or not.”
There was an implicit assumption on all sides that the iPod was authorized, that the iPod was official, that the iPod was price defending. The justices fretted that letting the file-sharing providers win would destroy the music trade; however then again, in the event that they let the MPAA and RIAA win, it could destroy the iPod.
In the meantime, Justice Ruth Bader Ginsburg, a identified copyright maximalist, reserved her gotchas for the opposite facet, lobbing them straight at Richard G. Taranto, who was representing the file-sharing firms. “You don’t question that this service does facilitate copying.”
“As does the personal computer and the modem and the internet service provider and the Microsoft operating system,” Taranto replied easily.
That’s, in fact, roughly the rub: if the Xerox machine is considerably of a troubling invention, every little thing about our modern-day computer-rich ecosystem is a thousand occasions worse. My telephone syncs to my pill, syncs to my laptop computer; the worth proposition of each system on my particular person is that it instantaneously and unquestioningly shares copies — of textual content, footage, audio, video — with different gadgets and different folks. An internet site is a thousand, million, billion copies served as much as totally different folks at totally different occasions. Copies are downloaded to gadgets, uploaded to servers, linger, after which vanish once more whereas in transit. There’s a elementary mismatch between the post-internet period and the very basis of copyright legislation, and 100 unusual little tweaks and twists and exceptions have needed to be made to make sq. pegs match into spherical holes.
Grokster is the story of a kind of exceptions.
The Supreme Courtroom would finally determine Grokster in favor of Hollywood and the document labels, however with out totally adopting their reasoning. And within the courtroom’s strenuous efforts to stroll that high quality line between the iPod and the RIAA, it shamelessly made up a complete copyright legislation doctrine with out batting a watch, a principle of legal responsibility that hadn’t existed up till that cut-off date.
Copyright legislation had been one factor in 2004. It was a very totally different factor in 2005 and past.
In all equity to the Supreme Courtroom of 2004, it had waded into the authorized model of a discussion board flame warfare. In each courtroom, legal professionals act out hostilities as a type of theater. However for some purpose, the copyright wars actually have been as hostile as they appeared on the surface.
“I would say there was really a battle going on between Hollywood and Silicon Valley,” recalled Mark Lemley, a legislation professor at Stanford and longtime litigator who, in 2003, received the Grokster case within the decrease courtroom. “And you saw it in lots of different places.”
The Digital Millennium Copyright Act (DMCA) had been handed only some years prior. For tech trade legal professionals and web freedom varieties on the time, the passage of the DMCA — with its authorized restrictions on bypassing DRM and its loophole-riddled secure harbor regime which allowed platforms to evade legal responsibility for internet hosting copyrighted materials as long as they took it down upon discover — was a crushing defeat. The file-sharing lawsuits have been a part of the identical warfare, merely fought on totally different grounds.
“I think each side really did think that this was existential, that the other side is going to destroy us,” mentioned Lemley. “One side said, ‘The copyright industry wants to eliminate digital technologies,’ and the copyright industry said, ‘We’re not going to survive, creativity is not going to survive, if everybody could just get this stuff for free.’ And so everybody felt like this was it, right? This was for all the marbles.”
The document labels had sued the makers of the Rio MP3 participant in RIAA v. Diamond and had misplaced. The Diamond resolution even comprises a couple of strains that counsel that it’s honest use to tear a store-bought CD right into a digital format. (Consider it or not, that’s one thing that has nonetheless by no means been definitively settled in a courtroom of legislation, though Justice Souter obtained the RIAA’s Verrilli to say it was high quality throughout the Grokster oral arguments on the Supreme Courtroom.)
The RIAA’s legal professionals have been principally successful their battles towards the peer-to-peer file-sharing providers, however they have been dropping the warfare. The most popular new devices have been driving on the again of music piracy, and the higher that computer systems and web speeds obtained, the simpler piracy turned. Successive iterations on Napster emerged — some have been tech firms backed by enterprise capital; others, just like the Pirate Bay, based in 2003, have been virtually ideological.
Folks merely wouldn’t cease pirating music. The trade’s subsequent transfer reeked of desperation: in 2003, the labels moved on to suing particular person downloaders.
The thought was to scare folks straight, however in lots of respects, this was a disastrous technique. The PR fallout was monumental. Unable to completely determine defendants primarily based on their IP addresses, the RIAA’s hit charge was, to say the least, extraordinarily problematic. Dad and mom have been being sued for what their underage children had completed on the household laptop. Tales about little outdated grandmas getting lawsuits mistakenly thrown at them have been ubiquitous within the headlines. Even the artists that publicly backed the RIAA fits — like Metallica — have been roundly mocked and despised by their very own followers for doing so.
The labels, on some stage, needed to know that it was not one of the best concept. In any case, they solely resorted to suing regular folks after they tried suing file-sharing providers and MP3 participant producers. These folks, relying in your angle, could be referred to as customers, pirates, followers, or downloaders. They have been usually younger youngsters; after they weren’t minors, they have been often faculty college students who had, after transferring into their dormitories, accessed high-speed web for the primary time. Within the courtroom of public opinion, these children have been collateral injury within the copyright warfare between “the tech industry” and “the content industry.” However in a courtroom of legislation, the children have been the actual perps in a multibillion-dollar disaster of copyright infringement.
The file-sharing providers have been expertise firms, and the expertise by itself was not unlawful. The peer-to-peer file-sharing providers have been promoting software program; they weren’t even internet hosting the content material. And the latest era of providers weren’t internet hosting a central database to seek for content material, the best way that Napster did.
All types of recent tech — like VCRs and Xerox machines — have undergone durations of copyright anxiousness earlier than popping out the opposite facet. They turned established as official improvements that generally get used for copyright infringement. In truth, within the case of the VCR, a seminal 1984 Supreme Courtroom resolution had smoothed issues alongside.
The RIAA may need defeated Napster in courtroom, however the recording trade’s case was by no means ironclad. Every new iteration on Napster turned one other alternative to hash the precept out in courtroom. To what diploma might the expertise be held responsible for the copyright infringement of the customers? It was solely a matter of time earlier than somebody confirmed up and at last scored a win towards the labels.
When the Grokster and StreamCast instances went up on attraction collectively, it was Fred von Lohmann of the Digital Frontier Basis, a persistent thorn within the facet of the RIAA, who argued them earlier than the Ninth Circuit. The appeals courtroom gave the win to the file-sharing providers; shortly after, in December 2004, the Supreme Courtroom granted certiorari, agreeing to listen to the case.
Lemley remembered feeling each nervous and cautiously optimistic. The Ninth Circuit had made a well-reasoned and articulate extrapolation from Sony v. Common Metropolis Studios, the 1984 Supreme Courtroom case legal professionals usually refer to easily as “Betamax,” since each Sony and Common are frequent fliers within the authorized system. The case established that Sony itself was not infringing copyright by promoting VCRs, despite the fact that many VCR house owners have been copying tv applications at dwelling. Sony’s Betamax tapes could be remembered because the also-ran format of VHS, however its title lived on on this authorized precedent twenty years later.
Past that, mentioned Lemley, even when nearly all of the content material on Napster was copyright infringement, that wasn’t essentially the case in Grokster. The plaintiffs who had filed swimsuit within the Grokster and StreamCast instances represented roughly each document label and movement image studio in America. When lined up one after one other, their names sprawl throughout a number of pages of the frontispiece of the Ninth Circuit resolution. Nonetheless, they’d solely been in a position to allege that 70 % of the content material being shared on these providers belonged to them, although they estimated that 90 % infringed somebody’s copyright.
And that mattered. Ten %, mentioned Lemley, must be sufficient to help the concept Grokster had “substantial non-infringing uses,” which was the authorized customary set within the Betamax case. A footnote within the Betamax resolution even means that it was sufficient that 7.3 % of the time, shoppers have been not violating copyright legislation.
7.3 %? That was barely something. The file-sharing providers had a whopping 10 % going for them.
Nonetheless, mentioned Lemley, there was additionally good purpose to be nervous. The procedural background was barely alarming (for the Supreme Courtroom aficionados: when the courtroom granted cert, there was, at most, a “shallow circuit split” within the case; arguably, there was no break up in any respect). And the case was popping out of the Ninth Circuit, an appellate courtroom that SCOTUS notoriously likes to reverse.
The Supreme Courtroom, too, is only a totally different animal altogether. Theoretically, SCOTUS is just a notch above the federal appeals courts. However that single ladder rung separates the remainder of the authorized system with a moat of weird customs, foibles, and etiquettes. The bar of attorneys admitted to follow within the Supreme Courtroom is an unique one, and inside that bar is an much more unique group of people that recurrently argue in entrance of it, an elite priesthood that panders to 9 robed gods on a raised dais in a theatrically lit room.
The file-sharing firms didn’t have the deep pockets for considered one of these non-public sector large weapons, and so their EFF lawyer Lohmann was slated to argue the case earlier than the justices. However ultimately, billionaire Mark Cuban ponied up the money to pay for Richard Taranto, who had been arguing in entrance of that courtroom for 20 years. (“I did it because I thought the music industry was being heavy handed with IP and Grokster was the underdog,” Cuban wrote The Verge in an e mail. “Beyond that I don’t remember anything.”)
“I’ll admit I was a little bit disappointed,” mentioned von Lohmann. However going with the specialist — now that there was cash to pay him — made sense. “Basically, arguing in front of the Supreme Court is like being a therapist to those nine people. It’s not just about the law. It’s also about knowing what the justices’ pet hobby horses are and what things trigger them and what their alliances and animosities are.”
And von Lohmann, an early adopter and web nerd who had fallen in love with digital copyright legislation after studying an article in an early challenge of Wired, was not fairly the vibe for this scene. The day that Grokster was heard within the Supreme Courtroom was a momentous one — along with altering copyright legislation without end, the oral argument proper earlier than Grokster was for Model X, the case on which modern-day internet neutrality rests.
But, on that day, the press gallery was abuzz, fixated on one thing else: Fred von Lohmann had a ponytail. Nobody might keep in mind one other time {that a} male lawyer with lengthy hair had proven up in entrance of the justices.
The Ninth Circuit, the place von Lohmann had argued and received the case earlier than it got here to the Supreme Courtroom, had not cared about his ponytail.
However von Lohmann would hear about all that later. Within the second, he was targeted on what he thought was the second that the web was going to get a transparent rule. The Ninth Circuit had interpreted Betamax to guard the file-sharing firms. The RIAA and MPAA have been by no means going to go away that precedent alone; the expertise trade and the EFF and Mark Cuban, too, weren’t going to go away this challenge alone, both. Regardless of who received or misplaced, the Supreme Courtroom needed to settle the precept as soon as and for all.
Besides it didn’t. “In some ways, it’s so disappointing that the Supreme Court did not give us an answer,” mentioned von Lohmann. “Rather than deciding ‘Is Betamax still the foundation of the technology sector?’ they sort of punted that question and answered a different question.”
Grokster is an odd SCOTUS precedent as a result of actually, it doesn’t make a complete lot of sense. The choice created a brand new type of legal responsibility referred to as “inducement”: the expertise firms, the courtroom dominated, had seduced the customers — the teenagers, the children, the followers, the pirates — into infringing copyright. It didn’t matter that these providers by no means hosted any information or made a central index.
A few of the proof the courtroom cites is sort of bizarre. For example, StreamCast had distributed a program referred to as “OpenNap” and had run advertisements for it with Napster-compatible applications. Grokster had it even worse — the connection to Napster was in its personal rattling title! “[A]nyone whose Napster or free file-sharing searches turned up a link to Grokster would have understood Grokster to be offering the same file-sharing ability as Napster; that would also have been the understanding of anyone offered Grokster’s suggestively named Swaptor software, its version of OpenNap,” learn the SCOTUS opinion.
The first takeaway of Grokster is “don’t look like Napster,” written in such imprecise phrases that legal responsibility appears to loom over a lot of the tech trade. Okay, so, don’t begin an organization with a reputation ending in -ster. However now what? Who can be deemed the following Napster? How do you keep away from trying like them? How do you even know what the following Napster is? What does it imply to not seem like you’re courting clients who could or could not infringe copyright? A system that streams TV broadcasts to your laptop computer, a web site for importing combine tracks, an picture host that markets itself as devoted to memes and viral content material — the place do they stand? The choice didn’t overturn Sony v. Common, however Betamax was now not the dependable precedent it as soon as was. “Most honest copyright lawyers would tell you that the value of Betamax in protecting technology vendors has been eroded in the years since Grokster was decided,” mentioned von Lohmann.
Copyright legislation is deeply punitive. Not like most different torts, the rights holder doesn’t want to indicate that they have been harmed; the statute permits a choose to levy as much as $150,000 in statutory damages per infringed work. (That’s in excessive, “willful” instances, because the recording trade believed Napster was. In regular instances, statutory damages are speculated to vary from $750 to $30,000 per work.) If a consumer base is consuming thousands and thousands of songs or motion pictures or footage by way of a service, that’s more cash than most nationwide GDPs. In follow, no tech firm ever will get hit with a trillion-dollar copyright judgment, however the theoretical threat remains to be sufficient to present pause.
In its speedy wake, Grokster appeared to hold over the trade like a sword. It got here as a specific shock to Lemley, who had sailed away on a trip to the Arctic Circle with no satellite tv for pc service simply hours earlier than the Supreme Courtroom resolution got here down — two weeks later, he turned the final of the legal professionals within the swimsuit to seek out out what had occurred to his case.
“I don’t think Grokster made file sharing go away,” mentioned Lemley. “But I do think it changed the legal landscape and made it more challenging to be a high-profile tech company that was in the business of digital content transmission. I think a bunch of folks just went out of business.”
In the end, Grokster would shut down in 2005; StreamCast Networks filed for chapter in 2008.
The general public’s notion of downloading, too, made a radical shift. “The legal campaign, the lawsuits against individuals, the media coverage — the cases actually made change,” mentioned von Lohmann. Till the RIAA launched what appeared on the time to be a futile warfare towards piracy, no one took particular person piracy significantly. “When I was a kid, like, nobody ever thought twice about, ‘Oh, can I borrow that album? I’ll tape it at home.’”
However he witnessed the shift in attitudes personally whereas on the entrance strains of the copyright wars. “During that period, when you did surveys, it became increasingly difficult to actually get a read on how widespread file sharing was because, between 1999 and 2005, everybody started lying about it,” mentioned von Lohmann. It had gone from one thing uncontroversial to one thing like smoking weed. Everybody did it. Everybody knew that everybody else did it. Nonetheless, you weren’t speculated to admit it.
Earlier than that shift in public notion, for the true followers, file sharing was only a implies that the document labels weren’t offering. The followers wished to hearken to every little thing, to have an actual alternative of favourite artist earlier than shopping for live performance tickets and merch, to have the ability to eat a complete again catalog. Followers wished digital music. They wished quick access to music. They wished light-weight and moveable MP3 gamers. Additionally they, indisputably, liked free shit. Not each downloader is a fan, and never each fan is circulating a reimbursement into the artistic financial system.
The music trade thought that freeloading tech firms would destroy them, and the tech firms thought that the music trade’s overzealous copyright legal professionals would, in flip, destroy them.
However then issues simply type of settled down. Steve Jobs launched the iTunes Music Retailer in 2003 with express comparisons to file-sharing providers, and it was already proving its financial potential. Spotify was based in Sweden the yr after the Grokster resolution got here out. The content material trade and the tech trade have been now not in a deathmatch to destroy the opposite. Licensing was making the cash move once more. Past that, folks now had “a simple and not that expensive way to get music legally,” mentioned Lemley. “And that, I think, causes a bunch of people to just sort of stop using file sharing. It doesn’t go away. But it just becomes, you know, what I wanted, which is the ability to play music on my devices.”
It turned out, as properly, that the DMCA — the legislation that Silicon Valley had seen as a horrible defeat — ended up turning into far more necessary than anybody had thought it could. The spooky uncertainty of Grokster drove platforms straight into the arms of the DMCA secure harbor provision, which stored the copyright legal professionals away as long as they got bureaucratic methods which allowed notices of infringement to be despatched and content material to be taken down. Over the following few years, the case legislation and precedents across the DMCA would accumulate into a sturdy physique of legislation by way of which a lot of the web survived and even thrived. The world we at the moment inhabit, through which your Instagram posts get flagged, your favourite Twitch streamers get quickly banned, and each YouTuber understands {that a} copyright strike is a nuclear weapon, is one which got here to life after 2004.
Relations have since thawed between the tech trade and the content material trade — if relations aren’t precisely amicable, they’re, a minimum of, inflected with a way of normalcy.
Take into account how a lot the difficulty of AI and copyright continues to inflame the general public creativeness, and but, quite than launching a unified warfare, some media firms have sued, whereas different media firms — together with The Verge’s mother or father firm Vox Media — have chosen to merely minimize offers with the likes of OpenAI. Copyright will not be a campaign; copyright is enterprise as traditional.
For many readers, that is all a nostalgic backdrop to a narrative they could or could not have heard in some iteration or one other. And but, a not-insignificant variety of individuals are studying these phrases within the yr 2024 and scratching their heads.
“In an era where we all just take Spotify for granted, people don’t remember what it was like when every CD cost you like 10 dollars,” mentioned Fred von Lohmann. “Your personal CD collection was a tiny window on the world of music, like a very carefully selected curated slice of the universe of music. And Napster changed that overnight. And suddenly, you could be like, I can listen to obscure reggae. And then I can listen to electropop, and then I can listen to The Beatles.”
For von Lohmann, the arrival of file sharing was akin to the second The Wizard of Oz goes from black-and-white to paint. “I would still argue in some ways, we still don’t have it as good now as fans as we did with Napster in ’99,” mentioned von Lohmann. “There’s still a lot of stuff that you can’t get that was available — like live recordings and rarities and bootlegs and stuff that will never be on Spotify.”
However the distinction between now and the Nineties remains to be stark. Napster and the MP3 gamers that rode the wave of file sharing — the Rio, the Zen, the iPod — modified every little thing about how we hearken to and relate to music. Digital information are now not the secondary backups of our bodily libraries, an echo of “the real thing” made for handy transport. Music is digital-first; the vinyls and the CDs are secondary — for a lot of, they’re merely mementos. And expertise has additionally modified the financial incentives round music, cratering the revenues generated by way of the main labels and pushing musicians to hunt out various income sources.
Music, as we speak, will not be about copies — it’s about streaming. It exists as a alternative between platforms — Spotify, Apple Music, and so forth. The variety of performs is the coin of the realm.
A tune is a vibe, the backdrop of a TikTok, a meme ready to occur, a copyright bomb that may nuke a livestream. An MP3 is a perplexing fossil. A bodily CD is a limited-edition collectible.
Of the 9 justices who heard Grokster, just one nonetheless sits on the courtroom (Clarence Thomas). Verrilli, who represented the studios and labels, went on to develop into solicitor normal of the USA; as we speak, he’s again to arguing Supreme Courtroom instances within the non-public sector. Taranto, the lawyer that Mark Cuban paid for, sits as an appeals courtroom choose on the Federal Circuit.
After leaving the EFF, Fred von Lohmann went on to work for Google — he can be there throughout the latter half of the tortuously elongated Google Books copyright litigation, the landmark DMCA precedent set by YouTube’s victory towards Viacom within the Second Circuit, and the endless software program copyright shitshow that was Oracle v. Google. He’s now authorized counsel at OpenAI, which is at the moment besieged with its personal thicket of copyright lawsuits; he declined to speak about AI and copyright with me, asking to stay to the subject of a yesteryear lengthy passed by.
Grokster and StreamCast are useless. Even the iPod is now not in manufacturing. They’re buried and gone, just like the Betamax and the Betamax “substantial non-infringing uses” customary — all relics of a bygone period, the ephemera of 2004. Copyright legislation barely made sense then. As you would possibly suspect, 20 years later, it makes even much less sense now.
