MGM v. Grokster was a landmark case back in March of 2005. It led to the closure of the Grokster service and forced Sharman Networks, the makers of Kazaa, to settle pending lawsuits and convert their service into a legitimate network.
However, the most important implication over the long term may be the creation of a new test, the "inducement" test, to determine whether or no the creators of a product can be held liable for copyright infringement its users engage in.
Previously, according to the 1984 case Sony Corp v. Universal Studios, which revolved around illegal copying brought on by Sony's "Betamax" technology, all a vendor had to show as that their product was "capable of substantial non-infringing uses" and they could not be held liable for such infringements. While MGM v. Grokster fails to answer many of the questions left over from the Betamax case, its new test is both useful and very dangerous.
For, while the supreme court might have greatly hampered technological innovations by adding more uncertainty to the field, there is a potential silver lining to the cloud: The inducement test could be used to shut down some of the scummiest people on the Web, the makers of scraping and splogging software.
The Inducement Test
In its decision, the Supreme Court said the following:
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.
It went on to identify three things that it felt Grokster, as well as co-defendant Streamcast, did in order for them to concluded that they were inducing copyright infringement.
- Marketed toward former Napster users in a bit to fill a known demand for copyright infringement
- Failed to develop filtering tools or other mechanisms to reduce infringement.
- Sold ads on the service itself, thus tying its fortune to how much the software was used.
It also further distinguished the inducement test from the Betamax case by saying that Sony was not liable because there was "no evidence that Sony had expressed an object of bringing about taping in violation of copyright or had taken active steps to increase its profits from unlawful taping."
While all of this is a great leap beyond what copyright law has traditionally held (you can read more about the case in a historical context at this link) the inducement test provides a very loose standard for determining whether or not the creator and/or vendor of a new product or service can be held liable for copyright infringement by its users.
Even though the inducement test was targeted at file sharing companies, it was not limited to them or any other kind of technology. Theoretically, it can be applied to nearly any kind of product or service (though recent decisions involving flea markets seem to limit that somewhat).
That's why, when dealing with scrapers, MGM v. Grokster is potentially a very interesting case.
Do Scrapers Induce Copyright Infringement?
Reminder: I am not a lawyer, just a legal observer.
Since we now can, theoretically, go after the makers of products that induce copyright infringement, it seems logical enough to target the makers of RSS scraping software. After all, it is their applications, which can cost hundreds of dollars, that enabled scores of black hat SEOs to scrape, literally, thousands of sites each. It makes much more sense to target the software makers, of which there are only a few dozen, than it does to target the scrapers, which number in the thousands.
The question arises though as to whether or not the makers of scraping software are actually inducing infringement. After all, some might be able to argue that scraping applications have a "significant non-infringing use" (legitimate aggregation, synchronizing two blogs, combining multiple blogs, etc.) and that makes showing their inducement to commit copyright infringement much more important.
Since the Grokster case hints at the notion that simply changing one's marketing or adding new protections can make or break an inducement case, such matters would have to be decided on a case-by-case basis, looking at each application separately.
However, the evidence seems to be pretty damming. Take a look at some of these quotes from various scraping application Web sites. The first one is from an application with the initials WS:
If you like to scrape… I hope you're sitting down. Because WS doesn't just scrape SERPS, but ANY PATTERNED WEBSITE. You can set it up to scrape the IMDB if you want. And then you can display the results ANY WAY YOU WANT TO. It's truly scary.
Or this one from a scraper with the initials RB:
Never Search For New Content For Your Blogs Again, Let Other People Write the Content. You Just Post it to Your Blog!
Finally this one from a scraper with the initials AB, in regards to how it handles copyright complaints:
With this feature you can show a custom "removed" link human readers will see, while Google, and the sitemapper continues to see the original article text.
On every scraper software site visited, there is at least one quote, tool or feature that promotes the use of the software to infringe on copyright. Furthermore, none of the applications I viewed have any filters, warnings or other deterrents against using them for such purposes. Some even misstate copyright law to make RSS scraping appear legitimate and a few even host the scraper on their own server, profiting every time it is used.
While I am not a lawyer and a judge would certainly have to sort this out, this clearly appears to be a the exact type of inducement that the Grokster case was talking about. In fact, it directly matches many of the points raised in the Grokster case itself.
However, this doesn't mean that going after the author of scraper applications is a cut and dry matter. As frustrating as it is, there are still problems that need to be overcome.
Challenges and Obstacles
While it might seem that the road to shutting down vendors of scraping software is now paved in gold, there's a lot of work that would have to be done.
First, one would have to overcome the obstacle of jurisdiction as many authors of such software are located in other locations and even other countries. Though both Grokster and Sharman Networks were both located abroad, the West Indies and Australia respectively, the court found that it had jurisdiction over the cause because both companies did a substantial amount of business in the state. This was easy to prove with file sharing software downloaded millions of times, but would be much more difficult with scraping software likely only sold a few thousand times at most.
Furthermore, jurisdiction was granted to the state of California because it would not "offend traditional notions of fair play" or otherwise give the record industry an unfair advantage. Once again, this is easy to prove when million-dollar corporations are involved, but not so easy against small companies or individuals.
The next problem would be proving which scraping software was used for what. With so many packages available, proving that package X was responsible for a set of infringements could be a challenge. Not all scraping applications leave footprints that can be detected and one would almost certainly have to first sue the scraper himself in order to learn for certain how it was done.
Finally, the greatest challenge of all, is finding someone with the resources and desire to carry this kind of a lawsuit through. While there are certainly many well-off bloggers that could do such a thing, few have a strong desire to do so.
One alternative might be for a lawyer to take up the case and create a class action lawsuit, or a series of class action lawsuits. Theoretically, one well-positioned and dedicated attorney could do a great deal of damage to the vendors of scraping software. However, there is little guarantee of a big payday and it's a huge risk no matter how one looks at it.
Still, while the challenges are great they are not impossible to overcome. A few people in the right position with the right idea might be able to make it happen. While many, including myself, will be concerned about using such a dangerous ruling, even to bring about a positive result, it is the law at the moment and there is no sense in ignoring it, or letting it be used solely for evil ends.
While I don't consider myself a fan of the Grokster ruling, I can't ignore the fact that it can be wielded to stop some of the Internet's worst crooks. If the law must be our law, we might as well find ways to make it work for us while striving to reduce or eliminate its chilling effects. There is really no alternative at this time.
Sadly, it is unlikely that the ruling or the inducement test will ever be wielded against the makers of scraping software, there are simply too many pieces that have to fall into place to make that happen.
But this does not meant that it can't happen and won't happen at a moment's notice. The groundwork has been laid and though the odds of someone following it is slim, the fact someone can should give the authors of scraping software reason to pause.
Though the danger might be slight, it is very, very real. According to one vendor, several scrapers have been sued already, "badly", but the Grokster case lays down an even firmer path and should make future cases even easier.
It may not be the end of scraping applications as a genre, but it is clearly not a good day to be writing them. Grok