Guns and <i>Grokster</i>

Daily Kos diarist Radical Russ claims to have found an ironic contrast between the ruling in recent Supreme Court case MGM v. Grokster (link goes to pdf file), and pending legislation affecting the gun industry.

First, Russ displays the relevant part of the Court's decision in Grokster, putting certain parts in boldface:

"We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties," Justice Souter wrote.

Russ then quotes the following Associated Press article about proposed legislation (championed by those sneaky Republicans!) that would shield gun makers from liability for gun crimes. Again, he uses boldface to emphasize certain words:

Senate Republicans on Tuesday moved the National Rifle Association's top priority ahead of a $491 billion defense bill, setting up a vote on legislation to shield firearms manufacturers and dealers from lawsuits over gun crimes.

"The president believes that the manufacturer of a legal product should not be held liable for the criminal misuse of that product by others," said White House spokesman Scott McClellan. "We look at it from a standpoint of stopping lawsuit abuse."

The bill would prohibit lawsuits against the firearms industry for damages resulting from the unlawful use of a firearm or ammunition.

[Senator Larry] Craig said such lawsuits are "predatory and aimed at bankrupting the firearms industry," unfairly blaming dealers and manufacturers for the crimes of gun users.

Outraged that a software maker can be liable for the misuse of its software, while a gun maker might not be liable for the misuse of its guns, Russ blames sinister corporate special interests for this alleged inconsistency:

Got that? If a company makes a product that is inappropriately used to illegally copy a movie, that company is liable. If a company makes a product that is inappropriately used to illegally kill a human, that company is not liable. What's the common logic holding these disparate concepts together? Massive corporate special interest money. Welcome to your government of the corporations, by the corporations, and for the corporations...

What's wrong with Russ's analysis? Well, first of all, Grokster was, of course, a court case, not a piece of legislation. All the special interest money in the world can't make five Justices rule in your favor.

But more importantly, Russ ignores the principle at the very core of the Court's holding in Grokster — that the maker of a file-sharing program or other copying device can be found liable for third-party actions if it distributes the device "with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement."

Those boldfaced words are the exact ones Russ didn't put in boldface. It's easy to see why he chose to ignore them: they contradict his argument. The Supreme Court says companies should be free to make software capable of copying and sharing files, so long as they don't promote them for the purpose of violating copyright law. It's entirely consistent with that principle that gun makers, who don't encourage people to use guns for criminal purposes, be held similarly blameless for the acts of third parties using their products.

(I found Russ's post cited approvingly on BoingBoing by Mark Frauenfelder, who is smart enough to know better.)

FOLLOW-UP:
A BoingBoing reader comments, and Cory Doctorow replies.