Academic journal article Texas Law Review

Modding the Web: Secondary Liability under Copyright and Web Modification Software in a Post-Grokster World*

Academic journal article Texas Law Review

Modding the Web: Secondary Liability under Copyright and Web Modification Software in a Post-Grokster World*

Article excerpt

I. Introduction

"Remix culture has hit the browser," proclaims an article on a new browser tool called Greasemonkey, which allows Web site viewers to modify sites to "suit [their own] tastes-whether the authors like it or not."1 The article goes on to describe various uses of the software, such as "fix[ing] buggy page designs . . . filter[ing] unwanted content such as ads and sidebar links . . . [and] mix[ing] content from multiple sites, upsetting the carefully calibrated sales environments at big online retailers."2 It also quotes the engineer who wrote the software to describe the sentiments behind its creation: "The Web was designed to be open and hackable from the start."3 Whether the Web was originally designed to be "hackable from the start" is beyond the scope of this Note, but it is safe to say that the increasing popularity of Web site modification software-which allows end users4 to modify how Web sites are displayed on their own computers-raises important issues regarding the substance and policy behind copyright law.

Greasemonkey and similar Web modification programs have the potential to drastically affect the business models of numerous online entities.5 For example, what if you could read the free version of the New York Times on the Web without having to view the advertisements? If enough people were able to do this, the value of the Web site to advertisers would certainly drop, and the Times' incentive to publish on the Web (at least for free) would definitely be reduced.6 Here's another scenario: Imagine you could view a page on about the new album from your favorite music group, which incorporated the prices of the album from different online vendors and a review of the album from, say, Amazon would probably be unhappy because you would be viewing its competitor's prices on its own Web site, and so would Rolling Stone because you would no longer have to go to its site (and, thus, see the site's advertising) to get a review of an album you wish to purchase.

Web site modification software has been available for a number of years in one form or another,7 and the copyright implications of such software have been discussed before.8 Still, it is worth reexamining the copyright problems posed by this type of software in light of the recently decided Grokster case,9 which raises numerous questions regarding when technology providers may be held liable for enabling direct infringement by third parties.10 Since it is highly unlikely that any Web site copyright holder could successfully sue direct infringers,11 secondary liability could become very important in this context, akin to its importance in the context of digital music dissemination.

Just as it is very difficult for a music copyright holder to detect end users who download music illegally, it would be very difficult (perhaps, even impossible) for a Web publisher to detect a viewer in the act of site modification. As I will explain in Part II, modification software is usually located on an end user's computer, and ultimately, because Web sites are essentially digital data, an end user could theoretically be able to manipulate this data in any way without alerting the copyright holder that modification is occurring. Thus, strategically, it would be far more effective for Web publishers12 to go after parties enabling any copyright infringement that occurs when a user modifies the publisher's site.13 But there are limitations to using this strategy when dealing with dual-use technologies14-limitations first described in the seminal Sony15 case and revisited in the recent Grokster case.

Grokster involved a suit by a group of copyright holders against two defendants who distributed free software products that allowed computer users to share electronic files through peer-to-peer networks.16 These networks were often used to share copyrighted music and video files without authorization.17 The copyright holders filed suit, demanding that the software developers be held responsible as infringers on secondary liability theories. …

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