Posted 9:09 AM by Robert

Going Off The Grid With The Ninth Circuit

"Grid computing" - roughly, the harnessing of the collective processing power of many computers in different places - has been around for a while and is now anything but exotic. The idea was specifically and intentionally created in the 1990's to be analogous to an electric power network (grid) where power generators are distributed, but the users are able to access electric power without bothering about the source of energy and its location. Instead of maintaining a supercomputer (or nuclear power generator) in one's basement, one can obtain one's computing or electric power from the "grid." Of course, there are various concepts for working computers together, including "clusters," which some experts distinguish from grids:

The key distinction between clusters and grids is mainly lie in the way resources are managed. In case of clusters, the resource allocation is performed by a centralized resource manager and all nodes cooperatively work together as a single unified resource. In case of Grids, each node has its own resource manager and don't aim for providing a single system view.

The exact definition of a computing "grid" has given rise to some marketing issues (discussed here), but the by now well-established use of computer grids makes perfectly clear that the existence of a centralized server is not a central or key element in modern information processing. Grid computing has come into its own since the 1990's, and that obviously requires some fairly straightforward adjustments in applications of legal precedents dating from the 1980's and before. As the saying goes, none of this is rocket science.

So why can't the United States Court of Appeals for the Ninth Circuit - which includes California and Washington State, and many of the software and technology heavy regions of the country - figure any of this out? The situation is made all the more embarrassing for the Ninth Circuit by the fact that it was another Ninth Circuit panel that correctly demolished Napster.
But that court's opinion in MGM v. Grokster reflects an appalling fixation of the importance of centralized servers and other centralized features in applying the Supreme Court's 1984 Sony-Betamax decision, the high court's last major decision regarding the scope if copyright protection in connection with electronic copying technology. The New York Times correctly summarizes the Ninth Circuit reasoning:

The Ninth Circuit had found Napster liable because the company itself maintained and controlled the servers that searched for the digital files its users wanted to download. Grokster and StreamCast, by contrast, operate decentralized systems that allow users to find each other over the Internet and then exchange files directly. Consequently, the appeals court said, the two services did not exercise the kind of control that could lead to legal liability for infringing uses.

Common sense is about 80% of what it takes to be a good judge. The Grockster-like software would, in fact, economically gut many copyrights through infringement and is, in fact, generally believed in the recording and entertainment businesses to be doing just that. The Ninth Circuit says that gutting is OK. But copyright law is intended by Congress exactly for the purpose of keeping that kind of gutting from happening. Common sense is not always the law, but common sense should tell any good judge that in such circumstances Grockster et al must lose unless there is a huge, weird, unintentional and unavoidable hole in the copyright statute. But there isn't. The only huge, weird hole in the copyright statute is the one that would be created by the Ninth Circuit in MGM v. Grockster, one which the Supreme Court must now fix. And, sure enough, the Supreme Court has now positioned itself to clean up yet another witless Ninth Circuit embarrassment.

Sony-Betamax can be sensibly construed to have held that home video machines do not violate the copyright laws because they are intended mostly to be used for purposes that clearly do not infringe and do not, in fact, have infringement as a major effect. ("A challenge to a noncommercial use of a copyrighted work requires proof either that the particular use is harmful, or that if it should become widespread, it would adversely affect the potential market for the copyrighted work.")
The file-sharing software provided by Grockster and the like is nothing more - and was specifically intended by their creators to be nothing more - than a decentralized, grid computing version of the old, discredited Napster scam.

So don't be surprised if the Supreme Court fix takes the form of yet another dismissive, unanimous, per curium reversal of the Ninth Circuit by a high court that can barely conceal its contempt.