The Grokster Safe Harbor?

I agree with Randy, Lior and Larry that the question of what counts as "clear expression or other affirmative steps" is going to be unclear. But don't we have an kind of an answer, namely that Grokster creates a new safe harbor or common law of what gets you out of Grokster liability? I would imagine any of the following steps would insulate a business from the new "intent" liability.

1. Making a deal with the recording industry (iTunes)
2. Encryption of content offered (also iTunes)
3. A network optimized to some other explicit purposes (Freenet, privacy and anonymity, or even email -- personal communications)
4. Phone home technologies -- software that is montored centrally, see Randy's paper.

In short, I read Grokster to encourage building distribution tools that include one or more of the 4 measures above. And perhaps over the long term we'll see Grokster as, like Sony, a safe harbor case.

Comments

[Tom Poe]

"As independent ISPs largely cease to be relevant for broadband, . . ."

I recently discovered, in a rather painful way, that there appears to be a system in place, at least in the exclusive market territory of Qwest, in Iowa, that brings a significant focus on the role of independent ISP's.

When I contacted Qwest to request DSL service, I was given one option, i.e., take the Microsoft "package" for MSN-related setup, or not do business with the company, thank you, and have a good day.

On my own, I also discovered there are a select few "approved" ISP's operating in the region, and could pay double the price ("Qwest gets their money, and I(the ISP) get mine.")

I'm not real sure where we draw the line for giving an independent ISP the label of independent ISP, but I am sure that whatever is going on, the role of the independent ISP is even more relevant, today, and tomorrow, than it was, yesterday.

[Roger Friedman]

How can anyone be so sanguine about the death of the ISP? When the FBI comes knocking, don't you want someone looking out for your privacy? When the Grokster-hunters from Time Warner come knocking, wouldn't you like them to come to a non-Time Warner door? When your rates climb as fast as Cable TV service, won't you want a competitor around?

[Brett Frischmann]

Tim,

Do you mean that these steps would insulate a company from the "new 'intent' liability", in the absence of affirmative acts of inducement (based on conduct rather than technology/product design)? How the company conducts itself - in particular, with respect to potential and actual customers - would still matter even if the company took one of the steps you mention, right?

Of the four steps, I expect the 3rd - optimizing for some other explicit purpose (or perhaps range of uses) - will be fertile breeding ground for innovation in distribution tools.

[Tim Wu]

Well I am pleased to be getting comments on my Brand X posting here.

As for the death of the independent ISP, while I'm on the opposite side of most of my friends, I've always thought of the ISP of a strange place and likely false place to lodge one's hopes for limiting the powers and abuses of carriers. To my mind, its like saying we should control Microsoft by preventing it from selling bundling its operating system with a GUI

There are more and less important places to prevent vertical tying, and I've never understood why independent provisioning of a TCP/IP protocol is important. Now on the other hand, if we're talking about applications, I'd agree with everyone -- and that's the topic of network neutrality rules.

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