P2P services can be sued too: Supreme Court

Today the US Supreme Court sent a strong message to the file-sharing services: that they are responsible for their users’ infringement of copyright law. The unanimous decision “stands to reshape an Internet landscape in which file-swapping has become commonplace,” CNET reports. The decision “won’t immediately shut down access to the trading networks, however.” The Supreme Court sent the case back to the lower courts to review the evidence in light of this decision, CNET adds. Basically, it means that the P2P services now join file-sharers themselves as targets of lawsuits. There was an element of practicality in the decision: In writing the Court’s opinion, the Christian Science Monitor points out, Justice David Souter “notes that, despite offsetting considerations about creativity and technological innovation, when there was such widespread infringement ‘it may be impossible to enforce rights in the protected work effectively against all direct infringers.’ He says the only practical alternative is to hold the device’s distributor responsible under a theory of secondary liability.” The entertainment industry estimates that 2.6 billion illegal downloads occur each month, the Monitor adds.

But the key factor in the decision was the services’ *promotion* of infringement. “We hold,” Justice Souter wrote, “that one who distributes a device with the object of promoting its use to infringe copyright … is liable for the resulting acts of infringement.”

As for the long term, the decision is probably the beginning of the end of the P2P free-for-all era. The pay-per-tune services like iTunes and Napster will be the early winners (and will get more flexible and innovative), the high-profile free services like Kazaa and Grokster will either die out or “go legit” (some are right now in the process), and free file-sharing will go further and further underground. As for users, a San Jose Mercury News column asserts the decision “will really do little to influence the behavior of the hundreds of millions of individuals who already use file-sharing networks. Entertainment industry attorneys could pound StreamCast and Grokster into a fine white dust tomorrow … but that will do little to curb the behavior of [file-sharers].” Here’s the view from the pro-innovation, copy-leftist Electronic Freedom Foundation and a pro-innovation, anti-litigation commentary at Forbes. And CNET’s round-up of coverage.