The Grokster Decision…What is means and why it’s right.

The decision is narrowly drawn, looks to the intent of the players and holds companies responsible for their intentional acts. It leaves Betamax untouched.

it's a good decision.

Like many others, I watched this case with interest. But, perhaps, with more interest than most. WiredSafety, the Internet safety group I run, had joined Verizon and others in the 512(h) subpoena litigation against the copyright associations. (The issue litigated involved a little known provision of the DMCA which had been held to allow a copyright holder to demand the real name, address and telephone number from an ISP for one of their subscribers if allegations of copyright infringement were made and a $35 fee paid to a court clerk.) We won. The copyright associations weren’t thrilled with our joining the litigation, but we knew that child molesters and cyberstalkers would soon abuse the process, claiming to be copyright holders.

I promised everyone that once the privacy issue was resolved, I would weigh in on responsible use of copyrighted material. And I did. It feels like selling out sometimes, but it’s right. It’s a sign that the Internet is maturing and so am I.

In the olden days before I began protecting kids and educating parents online, I was as liberal as they come. I fought any attempt to regulate the Internet or restrain actions online. “Educate not legislate” was proclaimed loudly on all of our websites and in every speech I gave. I fought law enforcement access to information without a court order or hard-sought subpoena.

Then I started working with families, holding children who had been molested in my arms and consoling their family members when their young teens were killed by sexual predators they met online. I saw images of 3 year olds being raped online. I knew and fought against unspeakable horrors.

And in the process, I found a balance. One that allowed for security, not just privacy. One that promoted responsible technology use, not free-wheeling abuse. I found a limit, in some cases for free speech and realized that without balance the Internet would never become what it could. I knew that in some ways I was selling out, in the way many of us (from the sixties) did after college when we paid taxes and wore dark suits and worked in tall buildings instead of blowing up buildings and shutting down military recruitment centers. But maybe it isn’t selling out. Maybe it was growing up.

In any event, I have grown up.

And now look to doing what’s right, not just what we can get away with.

Our kids are stealing. And many of the P2P companies are building a business on this. Some have even engaged in not so subtle messages about what they are doing, something I consider to be “consumer fraud.” Some promoted their services as “100% legal!” While their services are legal (allowing people to connect their computer to someone else’s for sharing files), using them to steal copyright material wasn’t. A subtlety lost on most parents and kids. When I would be speaking at a school event or to a parent group about responsible technology use and asked about the legality of using Kazaa or other similar sites to download music or motion pictures, I responding explaining the law. The next question, inevitably, was always about if what I said was true, how could a site like Kazaa lie about being legal. I would then be forced to explain the technology legality versus the use legality and by then, everyone was asleep.

People relied on the “100 Legal!” representation. They thought that if their children used those sites it was okay. And were shocked when they were sued. Hundreds of parents reported their confusion to me, and even more children and teens did. I would constantly have to argue my position, in the face of a prominent statement that seemed to conflict with what I was saying.

Enough people didn’t care about the legalities and were happy to steal music and motion pictures that the P2P services didn’t have to resort to tricking their users.

When I pointed this out to them in December, many of them remove the confusing language right away. But a few held out with excuses, and delays in complying with my request to remove the language confusing consumers. Eventually all complied and I was saved the effort of filing a consumer fraud complaint with the FTC and various state attorneys general.

The balance here was playing fair. The technology shouldn’t be banned because individuals were misusing it to steal copyrighted content. But lying to them about the legalities of stealing content should be banned.

Interestingly, the U.S. Supreme Court struck the same balance today. It didn’t blindly follow the Betamax line of cases which allowed people to by video recorders (in the face of the copyright holders’ claims that they would be used to pirate movies) by saying any technology that is can be abused is exempt from responsibility for the abuse. And it didn’t say that any technology is liable for abuse by its users. It said – look to the intent.

Just as I defended the P2P technology, but fought statements misleading their users into thinking sharing music was legal on their site, the Supreme Court said – it depends.

I am happy the Betamax line of cases remains good law. I am also satisfied that Internet and technology services and providers should be responsible for good business practices, such as not misleading their users or promoting illegal or misuse.

One of my Teenangels told me that I was wrong when I compared this issue to the Sony Betamax one. He looked me in the eye and said “It’s not like the use of a video recorder to play family movies or record something from the TV when you’re not home. No one uses [the P2P provider’s name omitted] for anything legal.”

From the mouths of babes.

If the P2P companies can show their intent is not to promote illegal use, they are fine. If not, they are just as responsible as anyone else who promoted illegal activities.

It didn’t go too far, but went far enough. Good decision. Fair decision. And the right decision.