Peter Griffin: Grokster judgment dooms free download P2P services

The short blurb on the front of once-flourishing music download website Grokster.com says what a legion of recording industry lawyers, millions of Grokster users and the companies executives have known all along: There are legitimate services for downloading music and movies. This is not one of them.

And with that, the recording industry, which grows more adept at fighting piracy with every case it takes against illegal download services, scores another hit against people who like their music to arrive on their computers fast and free.

Grokster crumbled this week under the weight of expensive legal action brought by movie and recording industry plaintiffs. It agreed to a US$50 million ($73 million) settlement, but there's little hope of it ever paying.

The nail in the coffin came in June, when the United States Supreme Court ruled that the entertainment industry could go after peer-to-peer (P2P) software vendors that encourage their customers to illegally download music and movies over the internet.

The legal action in the wake of that judgment acknowledges that the distributed nature of P2P services (they exist on the computers of users rather than in any central system) means it is impossible to go after the users of the services individually.

The music industry has tried this approach in the past couple of years and ended up dragging through the courts grannies whose grandkids were downloading music rather than doing their homework. It resulted in a lot of bad press and stiff fines for people who didn't have any money.

The P2P operators argued, successfully for a period, that they weren't responsible for the behaviour of people using their software. That's an age-old argument that also stretches to the use of guns, cars and everything else we buy.

The difference lies in the word encouragement, and it seems Grokster was found to be encouraging the users of its free software to download free material.

Mopping up the rest of the popular P2P downloading services that are used for illegal music and video downloads is now just a formality.

But it's a small victory for the recording industry in the scheme of things. Bittorrent clients such as Azeurus and torrent download websites such as www.isohunt.com still proliferate. In fact, most of the downloading hangs around the Bittorrent technology, which allows more efficient downloading and uploading of bigger files. In that context, the switched downloaders have long abandoned Grokster and its equals.

New movies and music releases are flashing around the world over high-speed internet connections as you read this, the senders filled with some sense of fulfilment that at least they are sharing.

But what does the legal action mean for P2P technology? Many are talking it up as the future of computing, where your individual computer is irrelevant and you share computing power and information with a global network of machines. Indeed, most of the major tech players are building P2P platforms, aiming to construct one massive electronic conduit for the world's information.

What the legal action means is that if you make a P2P client and it becomes very popular, you had better be very sure you don't encourage people to trade files illegally, because you'll be held responsible, not the people who use your software.

How far does encouragement stretch? Advertising the fact that you can download free content? Giving the software away?

Grokster had it coming and they knew it, but what about other P2P services that don't share its notoriety? How will it be determined what encouragement they have given customers to flout copyright law?

The Grokster settlement leaves the company in a much worse position than its Australian contemporary Kazaa, which was ordered to put filters on its software to stop pirated material being traded. The music industry is expected to go after Kazaa for hundreds of millions in damages, so its position is now no less tenuous than Grokster's.

Both plan to start legitimate services, but their names are now more closely associated with unwanted adware and spyware than quick and easy music downloads.

In its jubilant press release about Grokster's settlement, the Motion Picture Association attached a helpful list of US-based legal music download websites. The suggestion is that there's sufficient choice and value among online music stores in the US to dissuade people from downloading songs and movies illegally.

The continuing piracy would suggest otherwise.