According to el-reg the RIAA is going after Limewire, the p2p company that provides a premium connection client to the Gnutella network to allow people to share files. That much was already know. Geeklawyer’s interest was piqued by the Register’s contention that a new feature of the RIAA’s complaint that distinguished it from previous litigation was that they were targeting the developers merely because they were developers of the code and/or they enabled and encouraged others to assist in its development.
Limewire is a Free/opensource program where anyone can get the source code and hack it as they see fit. This poses something of a problem for the RIAA since it makes it impossible to focus on all the individual developers; because they can be anyone anywhere in the World they become a cloud and difficult to target. Ultimately its opensource nature means the Limewire software cannot be easily killed even if the Limwire parent corporation can be litigated to death.
What is a concern is that the Grokster ruling last year while in itself not supporting the RIAAs arguments unarguably, does create sufficient wiggle room to make taking them on a risky and expensive proposition. In Groskter the US Supreme Court said:
“We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.”
On its most natural reading Geeklawyer would take this to require a distributor to knowingly distribute it when it has no other real function than infringement, or where there is dual infringing/non-infringing use but where the former is unambiguously promoted. Of course this depends on the meaning of ‘affirmative step‘ and a liberal interpretation of the phrase would be hoped for by the RIAA. A hope with some historic precedent.
For Geeklawyer’s part he will try to avoid hackneyed geek cliches like “chilling effect” when discussing the implications. Nonetheless if it is the developers being targeted merely for engaging in development then it represents the next logical step in the subversion of technology to the ends of America’s entertainment industry. And that is a very serious problem for everyone, not just geeks.
Hasn’t this already been settled? I thought dual use technologies were ruled to be legal in the Sony case?
…and wasn’t code ruled to be free speech and thus falling within the protective remit of the 1st amendment?
No, this issue is all a follow on to the Grokster judgement which was hoped to address the Sony case in relation to file sharing technology.
As for code & free speech: one of the issues is, in effect, does free speech entitle you to create instruments of fraud? You may be entitled to publish code but are you allowed to use it to incite copyright infringement, yada yada.