P2P, Alcohol, and Guns:

Rebecca Tushnet has an excellent post on SCOTUSblog that asks: Following the MGM v. Grokster decision, just what may technology companies safely say in their ads, press releases, and the like? And what statements should they avoid, for fear that a jury will eventually find that the statements provide "evidence of stated or indicated intent to promote infringing uses"?

Or say that the same rule ends up being applied to distribution of other products. (Right now it's just a copyright law rule, but courts often create such rules reasoning by analogy; the rule might prove influential in other fields as well.) You're an alcohol manufacturer. You know that some of your product is consumed by underage drinkers. You make money from them, because there's no way you can avoid it.

Most of your buyers use the alcohol legally, not illegally, so in this respect you're likely different from Grokster; but while the Supreme Court discussed how much of Grokster's user base was likely violating the law, intentional promotion liability can apply without regard to whether most users are illegal — intentionally promoting illegal uses by even a minority of users could lead to liability for those uses. What can you safely put in your ads, and what might lead to liability on the theory that it shows an intent to promote underage drinking (even if you personally know you have no such intent)? Remember that the intent needn't be expressly "stated," but may simply be "indicated," as it is in Grokster itself.

Likewise if you're a gun manufacturer. You know some of your guns — a small fraction, but some — are used by violent criminals. (There are about 200+ million guns in the country, and about 400,000 violent crimes using guns per year, so the great majority of guns aren't used to commit a violent crime.) You make money from all buyers, legal or illegal. What can you safely put in your ads, and what might lead to liability on the theory that it shows an intent to promote the buying of guns for illegal purposes (again, even if you know you don't have such an intent)?

UPDATE: Corrected "500,000 gun crimes" to 400,000 — I had been working from memory, and my recollection was from years when crime was higher than in 2002, the latest year for which I found data (see table 66, which reports on robberies, assaults, and rapes, both completed and attempted, and add some 10,000-odd firearms homicides). I also changed "gun crimes" to "violent crimes using guns" to better track my point, which was focused on violent crimes. No-one has any idea how common, say, pure gun law violations (from illegal concealed carry to improper storage while taking the gun to the gun range to failure to properly register) are. My concern here is with violent crime, because that's what most people are really worried about, and what gun manufacturers wouldn't want to be seen as promoting.

Related Posts (on one page):

  1. P2P, Alcohol, and Guns:
  2. Grokster Decision:
Boris A.Kupershmidt (mail):
"There are about ... 500,000 gun crimes per year."

Are you sure?
6.27.2005 9:53pm
Dick King:
It's plausible. Most gun crimes do not actually involve a gun being fired. The typical gun crime is a holdup where the victom turns over the money and the criminal does not shoot anyone but goes on to do it again on the next night using the same gun. For each actual criminal killing or wounding there are probably quite a few brandishings.

Most guns that are used in any gun crimes at all are used in quite a few. The number of guns actually used in a crime probably numbers a few thousand, or perhaps 0.003% of the total. Even if every gun were discarded after one criminal use that would be a tiny 0.25% of the total guns, and this is the upper bound. This was Eugene's point. Obviously gun manufacturers are not making their money on criminal use [although there are antigun activists who do claim that they do make their money on selling guns to honest citezons who only buy them because of fear of criminal use].

6.27.2005 10:23pm
nk (mail):
And how about the Post Office?
6.27.2005 11:00pm
LiquidLatex (mail):
Remember that a lot of those "200 million guns" are owned by a select minority of americans. You'd have to break it down by all the current gun owners, not the numbers of guns.
6.27.2005 11:47pm
John Tillinghast (mail):
Does the figure of 500,000 include people prosecuted for illegal possession or carry only?
6.27.2005 11:49pm
Kevin Bryan (mail) (www):
How about car ads? "The 140, 150, 160 on the speedometer that we keep showing? Oh, Honorable Justice, that's for our users who are going to a closed-in racetrack." There are a number of products who relied on illicit use by their customers (with no attempt to halt) before later developing into common products.

I may have missed it, but no one in the arguments brought up porn, did they? This is as big of a potential moneymaker for the fileshare networks as music is. I don't recall this being mentioned in Sony v Universal either - perhaps everyone agreed that the "What about the huge noninfringing use of exhibitionists?" wasn't the winning line for the octogenarians on the Court.
6.27.2005 11:55pm
Eugene Volokh (www):
No-one's ever sure about crime statistics; they're estimates, and sure to be flawed even when the study is done as well as possible. In any case, I rechecked the latest numbers, and it looks like roughly 400,000. (500,000 was what I remembered, but that was from several years ago, when crime was higher.) See the National Crime Victimization Survey data, which reports 7.2% of 5 million violent crimes (robberies, assaults, and rapes) as involving firearms; add roughly 10,000 or so homicides; and then some unknown but likely not high number of kidnappings, which the NCVS doesn't gather information on.

I used "gun crimes" inexactly to refer to violent gun crimes (note that I had said "violent criminals" before and after there). No-one has any idea how many technical firearms law violations are out there, and statistics on how many are prosecuted tell us very little, since there's no way of knowing the prosecutions-to-violations ratio. But I take it that it's the violent crime, not the technical violations, that people are largely worried about. (The gun laws that are being technically violated are after all aimed at preventing violent crime.)
6.28.2005 1:12am
Zak Sharman (mail):
Doesn't the uncertainty apply equally with regard to file sharing services like BitTorrent, built on different architectures and with more diffuse commercial structures?

E.g., would BitTorrent search sites be liable under the Grokster doctrine for feeding ads to search result pages for clearly infringing searches?
6.28.2005 11:18am

What makes you think that downloading porn isn't usually a copyright violation? It is if you do it without permission of the owner--just like unauthorized music downloading .
6.28.2005 11:18am
TomHynes (mail):
Didn't Cheech (or was it Chong) go to jail for selling bongs, even though he claimed they didn't have to be used for hash?

The comments about porn and the Betamax decision bring up the ironic point that:

"The Betamax video format was killed off by the competing VHS format partially because Sony refused to allow porn to be released on Betamax, giving VHS a significant competitive edge in the market."
6.28.2005 2:20pm
James Fulford (mail) (www):
It was Tommy Chong who went to jail for selling glass pipes, as part of a huge federal operation.

An even dumber idea the idea of prosecuting sportswear manufacturers for making clothes in "gang colors."

But New Jersey officials, who say a dramatic spike in gang-related violence throughout the state now accounts for one of every five homicides, are considering use of anti-gang and anti-fraud laws against licensed manufacturers and counterfeiters who deliberately produce gang-friendly apparel.

"While we cannot say for sure right now that companies are targeting gangs per se, we are urging these manufacturers to be very careful and not manufacture team jerseys in colors that appeal to gang members," says Peter Harvey, New Jersey's acting attorney general. "If they refuse to police themselves, we're going to examine as an option whether or not they are aiding and abetting gang activity under our state's criminal laws."[Dressed to kill: Street gangs adopt athletic apparel as their uniforms Newhouse News Service, 6/5/03 ]
6.28.2005 3:59pm
Deoxy (mail):
"(The gun laws that are being technically violated are after all aimed at preventing violent crime.)" Or so they say.

"Remember that a lot of those "200 million guns" are owned by a select minority of americans."

"select minority" is supposed to mean "small minority", or so it would seem. Go check your figures again. It's technically a minority (being less than half), but it's quite a bit bigger than you seem to think.
6.29.2005 12:34pm