#174 July, 2005

MGM vs. Grokster: what does it mean?


 

In the MGM Studios Inc. v. Grokster Ltd. case, the Supreme Court ruled that Grokster has substantially encouraged customers to violate copyright law and illegally share and distribute copyrighted material. Grokster is software which allows one computer to connect directly to another computer (or pool of computers) and share files; music, photographs, video, programs.

If you read the press, you'll know the "manufacturer vs. victim" debate with fire arms, tobacco and food products has been going on for years. This new ruling sheds serious light on who can be blamed and prosecuted for the ills perpetrated on the public. If you make a gun and some criminal murders someone with it, does that make you responsible? Logically, it shouldn't. If someone gets lung cancer, and dies, by smoking your cigarettes, is your tobacco company liable? Logic tells us no. If someone eats your hamburgers all their life then dies from obesity, does that make your hamburgers responsible? It really sounds absurd doesn't it? Murder has little to do with who makes the weapon.

Likewise, life threatening behavior is really the responsibility of the people who engage in it and not that of the grower/processer of what they smoked, ate or drank. Some years ago the courts decreed that if you got drunk at a bar and went out and damaged someone else -- the bar management could be held responsible -- primarily because they "substantially encouraged" the behavior, as in the case with Grokster. People will do anything to avoid being responsible for their own actions.

This is not a soapbox. I don't want to go there. However I am going to point out that if the courts take this kind of precedent in one case, then it should be applied across the board. This important litigation should be applied to many, more insidious, forms of Internet crime and the criminals who perpetuate them.

It amazes me that only a small handful of Internet practitioners (including myself) recognized this situation all along. Even as far back as 2000 I preached far and wide that if the ISP industry would regulate themselves, then online crime (aka: spam, unsolicited bulk email, Phishing, pharming, etc.,) would be all but nonexistent. Many people could see the writing on the wall: if the industry didn't regulate itself the government eventually would do it for them. The industry refused to listen.

What amazes me even more is that it took a Supreme Court judgement to establish a secondary liability for an issue as non-intrusive as illegal copying of music. Consider how long have people been making recordings of music? How many cassette tapes were sold specifically to copy and share music albums? How come MGM didn't prosecute 3M or Sony? With the advent of VHS tape, how come MGM didn't prosecute Pioneer, Sanyo, Phillips and others. Don't get me wrong, stealing music is indeed illegal -- and it does damage the artists and producers. But it is not quite like defrauding the elderly with life-savings depleting scams, circulating hate and pornographic materials to children -- or bombing the subway.

If you make it possible for someone to utilize your tools to commit a crime, and they do so, are you liable? The Supreme Court now says yes.

The Grokster case transcends a bunch of adolescents downloading illegal music. By applying the very same ruling, one could justify litigation against ISPs (Internet Service Providers) and even ICANN (International Corporation for Assigned Names and Numbers) itself, for aiding and abetting criminal activities of forgery, racketeering, grand larceny, assault, and any number of laws covered by Title 18 of the Federal Code alone. In reality, those ISPs and ICANN are also guilty of obstruction of justice; because they could identify the IP address of the criminal, and cut it off, if they would. If they can finger the computer sharring music, they can finger the Phisher and Pharmer. But ISPs fear reprisal -- they think the criminals will sue them for discontinuing service. In light of our current judicial system, the criminals could probably litigate against the ISPs and win! (Picture a typical case in California: "Defendant ISP, I find you guilty of violating the rights of this criminal by blocking his crime-ring web site from distributing illegal drugs to minors.")

Russ Cooper, a senior information security analyst with Cybertrust, Inc., agrees when he writes in his recent article "Grokster Loses; ISPs Next?" He correctly surmises "The U.S. Supreme Court's ruling against Grokster could shift responsiblity for illegal file sharing to ISPs."

Cooper then makes the logical deduction when he writes:
      "The ruling doesn't immediately make Internet service providers (ISPs) liable, but it does provide further indication of where liability could -- and should-be assigned. One reason the Internet is saturated with viruses, worms, spyware and malware is because ISPs believe they have no liability for the actions of those to whom they provide service."

"Should be" are the operative words. The major Internet providers (ISP) and domain registrars should be liable -- quaking in their boots. But they're not.

Cooper hits the nail on the head when he says
      "The day of the open, unfettered and completely unmonitored Internet connection may well be over - and if it isn't, it should be. ISPs should be held accountable for the actions of the subscribers they've courted through promises to allow spam and/or hacking. The ruling may help thwart the constant onslaught every Internet subscriber must endure in using what is now being called 'the backbone of the U.S. economy.'"

But there's the snag. The ISPs continue to hide behind the wall of international trade -- since much of the criminal activity online is being skipped through off-shore IP block owners -- beyond the reach of U.S. law. Up until the government (the Clinton administration,) turned control of the Internet over to a loose-knit band of international intellectuals, the Internet was easily regulated. Online crime was rare because it was directly trackable. If you got an IP block and conducted criminal activities, that IP block was simply turned off -- ceased to exist in the Internet world. Today, the industry claims there's nothing we can do about the online crime because most links lead to international waters. They haven't yet figured out that you follow the money trail to trap the criminal -- NOT the IP sending the email!

Ultimately the IP numbering system is controlled by ICANN. Yet even the FTC evaded direct questions, in public forum, about the accountability of ICANN -- while wringing their hands over getting international cooperation in the war against spam. Indeed, ICANN hands Registrars the hand guns which they freely dole out to the criminals to commit their crimes. ICANN claims they cannot be held responsible. If you've ever tried to get through their incredible, impregnable, wall of bureaucracy, you'll see that they are above the law. But ISPs on this soil are not.

Which brings me all the way around to the beginning.

The Grokster ruling suggests that literally hundreds of ISPs and Domain Name registrars can now be targeted for directly allowing forged and fraudulent registrations to be freely used in the commission of crimes. I'm not talking about sharing some music -- but rather thousands of serious violations of Federal law, being committed all day every day. So if MGM can take Grokster to court and win, why can't PayPal, eBay or VISA take registrars like ARIN (or ICANN for that matter,) to court -- and win? Now, they could if they would.

If the FTC or the Attorney General would step up to the plate, they wouldn't have to shut down but a few of these IP block purveyors to set precedent. The others would fall into line. Computer users around the world could rest a little more assured they won't become one of the victims in the upward spiraling statistics of online crime.

If you have a better idea, let's hear it.

Thanks for reading...

Fred Showker

Readers respond:

      "Let us be thankful for the fools.
        But for them the rest of us could not succeed."
            Mark Twain

best choicePhishing : Cutting the Identity Theft Line

by Rachael Lininger, Russell Dean Vines -- Phishing is automated identity theft... it is the hot new identity theft scam. An unsuspecting victim receives an e-mail that seems to come from a bank or other financial institution, and it contains a link to a Web site where s/he is asked to provide account details. This book exposes the threat and provides firm answers on how to fight it.

We're here for you

Please take advantage of everything we have to offer. It will only help you in your daily activities. Please also take advantage of all the opportunities that exist in the online community. Ask questions, offer feedback, and contribute your ideas and opinions. We're here for you, and we're all here for each other.

Back to 60-Second Window
* The Design & Publishing Center
* DT&G Online Magazine

Would you like to carry the 60-Second Windows column in your newsletter or web site? Ask us about our syndication program... join hundreds of others who now publish 60-Second Windows!