Today's blog is brought to you by Solveig Singleton, back in the DC policy scene after a hiatus and a new Adjunct Fellow at PFF. I hoped this first blog would be a gem, but the best I can do is to toss a pebble into the pond of perplexity concerning the Grokster case. To recap, the 9th Circuit upheld the lower court's ruling that Grokster would not be liable for secondary copyright infringement.

Crucially, the court found that Grokster, a P2P file-sharing service less centralized than Napster, had no control over its users' illicit copying activity at the critical time necessary to stop them. It also emphasized the potentially non-infringing uses of P2P tech, following the Supreme Court's guidance in the venerable Sony case.

Let's assume for purposes of today's argument that this result won't preserve a healthy market in music. How could a future court do better? More specifically, what test could catch Grokster and not Xerox or iPod?

A partial list of key factors roughly derived from Sony and Judge Posner's opinion in the Aimster case and further developed by PFF colleague Bill in his recent paper might include:

Defendants level of control over the primary copyright violators;
Whether the main uses of the tech are legal or illegal;
The cost of measures that could be taken by the tech's distributor to reduce violations;
The distributor's level of knowledge of particular violations.

Using these factors, Xerox seems easily enough distinguished from P2P services. The main uses of its machines are legal. Its level of control is very low and the cost of changing it high, absent Soviet-style rationing of photocopiers. Xerox's level of ongoing knowledge of actual violations is likely to be low - who would bother telling them? (Kinko's, on the other hand, has a higher level of control and potential knowledge).

iPod is more tricky. Many current users may well be illegally downloading files. While iPod's present level of control is low, some sort of tweak might change that. One might argue that hardware is "just different" - that we could reasonably expect a software distributor to reprogram, but not a hardware distributor to redesign. That doesn't work - stepping outside the copyright context, no one seems to have major complaints with rules limiting the distribution of lock picks, and that's hardware. The hardware/software distinction is hopelessly slippery anyway, as so much hardware these days has a software component.

Maybe a partial answer is that pure software distributed under a license is different - a license creates a continuing relationship between software distributor and downloader that could be the basis of control - contractually if not technologically. Another part of the answer might be that iPod's contribution to illicit copying is not sufficiently material. It's primarily a player, not a collector - of music files. That is, most of its functions if not most of its uses are legal. And, finally, the iPod relationship with iTunes suggests that whatever lack of control they have is not deliberately "turning a blind eye."

None of this gives us a bright-line test. But how can there be one, when the tech is so flexible? Any bright-line test invites software to be written to fall just on the safe side of the line, for controls and centralization to be designed out and for myriad other innocent functions to be built in to preserve the "noninfringing uses" route.

If we are not to be indifferent to continued violations and wish to preserve the freedom to innovate, the best direction for a court would be to look to the mental states of particular defendants - targeting very particular uses of technology, not whole technologies. In a nutshell, it means avoiding "turning a blind eye." But the Grokster court believed that Sony does not permit this, and these inquiries into mental states are always difficult. One hopes the Supremes will grant cert.