International Law

Michael Carrier: Innovation for the 21st Century: Dual Use and Copyright

By Karl-Friedrich Lenz

Michael A. Carrier sent me a copy of his book “Innovation for the 21st Century” for a book review. See also this “Blog Symposium” on the book at the “Truth on the Market” blog.

I won’t write a lot about how I rate this book, but I just want to mention that it was the first thing I grabbed when there was a bogus fire alarm as part of an exercise at my university a couple of days ago and I needed to leave my office in a hurry.

I will focus my review on discussing recommendations in the book. First in line is the recommendation on pages 144 and 145 to return to Sony as a standard for deciding on secondary copyright infringement.

That is a good idea. However, returning to Sony would imply that the Supreme Court has left that standard. That did not happen. The Supreme Court Grokster decision added a test, but did not actually reverse Sony.

That test is also found in recent decisions of the German Federal Constitutional Court. They want to use the intent of the programmer to distinguish between legal and illegal tools. The last of these cases was from May 18th of this year.

German law has been changed to introduce a criminal provision against hacking into other people’s computers. Another provision introduced at the occasion prohibits developing and distributing software hacking tools.

Plaintiffs included an university professor active in the field who complained that he was shut out from teaching and researching about hacker software and a company that provided service to defend against hacking attacks, they complained that they were shut out from simulating attacks and therefore effectively defending their clients’ computers.

The Constitutional Court ruled that the provision in question was not applicable to parties with honorable motives, as those in that case.

I have already explained the problem with this theory in a post back in 2005 when the Napster case was decided. Under that theory, nothing keeps Napster from founding a new company “Trikster”, transfer the rights to the software to the new company and start marketing again, this time avoiding any appeal to copyright violation.

In other words, exactly the same software can be legal or illegal, depending on the entity marketing it or some small difference in the marketing plan. That is not a clear or workable standard, especially in the case of Open Source software developed by a multitude of people with different and not always easily verified motives.

So yes, dropping that standard and returning to Sony is a good idea.
On the other hand, I do agree with the Grokster court in one difference to Sony pointed out by Carrier on page 136. If there is a simple way to technologically enhance copyright protection, developers should be required to use it. And if you build functionality in your P2P software that serves only the express purpose of denying copyright holders the chance to enforce their rights, that would seem to be a strong indicator for secondary liability.

And I don’t see any realistic chance for the Supreme Court actually returning to the good old times of Sony. Grokster is in the books, and its main effect is to make matters much more complicated. The next decision of the Supreme Court will probably complicate the issue even more.

In sum, this is a good recommendation, but for implementing one would need a time machine to go back before Grokster, and that’s an innovation we don’t have in the 21st Century.

Full post as published by Lenz Blog on September 20, 2009 (boomark / email).