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Grokster Loses
Monday, June 27 2005 @ 01:02 PM EDT

Here's the decision [PDF] from the Supreme Court. 9-0. Total loss for Grokster. But on quick reading, I'd say Sony survives for now. On page 22 the court, however, says they will "leave further consideration of the Sony rule for a day when that may be required." That sounds ominous, and I think we have EFF to thank that it wasn't worse this time. Note footnote 12:

Of course, in the absence of other evidence of intent, a court would be unable to find contributory infringement liability merely based on a failure to take affirmative steps to prevent infringement, if the device otherwise was capable of substantial noninfringing uses. Such a holding would tread too close to the Sony close harbor.

The justices just felt that advertising and instructing users in how to use the software, profiting from the infringement, and deliberately attracting "users with a mind to infringe", as they put it, from the former "notorious Napster" created facts in evidence that *these* respondents were guilty as charged, so to speak, and knew what they were doing and did it deliberately. Here's the key sentence:

"We hold that one who distributes a device with the object of promotion 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.

It could have been a lot worse.

Unless you are Grokster or Streamcast. The summary judgment they won is overturned, so now the case goes back to the lower court.

But here is the part Hollywood needs to focus on:

The advantage of peer-to-peer networks over information networks of other types shows up in their substantial and growing popularity. Because they need no central computer server to mediate the exchange of information or files among users, the high-bandwidth communications capacity for a server may be dispensed with, and the need for costly server storage space is eliminated. Since copies of a file (particularly a popular one) are available on many users' computers, file requests and retrievals may be faster than on other types of networks, and since file exchanges do not travel through a server, communications can take place between any computers that remain connected to the network without risk that a glitch in the server will disable the network in its entirety. Given these benefits in security, cost, and efficiency, peer-to-peer networks are employeed to store and distribute electronic files by universities, government agencies, corporations, and libraries, among others.

In short, the Supreme Court understands that P2P is here to stay. Why? Because it works better than anything that came before it, as I wrote the first time I wrote about Grokster. There is no way to kill a better mousetrap, once people know it exists. Why the music business can't understand that simple truth and figure out a way to use this power is the puzzlement and a problem the Supreme Court didn't fix.

Here's the exact wording on Sony:

Because Sony did not displace other theories of secondary liability, and because we find below that it was error to grant summary judgment to the companies on MGM's inducement claim, we do not revisit Sony further, as MGM requests, to add a more quantified description of the point of balance between protection and commerce when liability rests solely on distribution with knowledge that unlawful use will occur. It is enough to note that the Ninth Circuit's judgment rested on an erroneous understanding of Sony and to leave further consideration of the Sony rule for a day when that may be required.

Here is the syllabus of the decision. It tells you the highlights. The actual decision, with all the details, follows it in the PDF, followed by the concurring opinions. To get the full flavor, you need to read it all, which you can do from the PDF or if you prefer text, we have the decision in full as text in the next article, including the concurring opinions.

*********************************

SUPREME COURT OF THE UNITED STATES

Syllabus

METRO-GOLDWYN-MAYER STUDIOS INC. ET AL., v.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT

No. 04-480. Argued March 29, 2005 -- Decided June 27, 2005.

Respondent companies distribute free software that allows computer users to share electronic files through peer-to-peer networks, so called because the computers communicate directly with each other, not through central servers. Although such networks can be used to share any type of digital file, recipients of respondents' software have mostlly used them to share copyrighted music and video files without authorization. Seeking damages and an injunction, a group of movie studios and other copyright holders (hereinafter MGM) sued respondents for their users' copyright infringements, alleging that respondents knowingly and intentionally distributed their software to enable users to infringe copyrighted works in violation of the Copyright Act.

Discovery revealed that billions of files are shared across peer-to-peer networks each month. Respondents are aware that users employ their software primarily to download copyrighted files, although the decentralized networks do not reveal which files are copied, and when. Respondents have sometimes learned about the infringement directly when users have e-mailed questions regarding copyrighted works, and respondents have replied with guidance. Respondents are not merely passive recipients of information about infringement. The record is replete with evidence that when they began to distribute their free software each of them clearly voiced the objective that recipients use the software to download copyrighted works and took active steps to encourage infringement. After the notorious file-sharing service Napster, was sued by copyright holders for facilitating copyright infringement, both respondents promoted and marketed themselves as Napster alternatives. They receive no revenue from users, but, instead, generate income by selling advertising space, then streaming the advertising to their users. As the number of users increases, advertising opportunities are worth more. There is no evidence that either respondent made an effort to filter copyrighted material from users' downloads or otherwise to impede the sharing of copyrighted files.

While acknowledging that respondents' users had directly infringed MGM's copyrights, the District Court nonetheless granted respondents summary judgment as to liability arising from distribution of their software. The Ninth Circuit affirmed. It read Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, as holding that the distribution of a commercial product capable of substantial noninfringing uses could not give rise to contributory liability for infringement unless the distributor had actual knowledge of specific instances of infringement and failed to act on that knowledge. Because the appeals court found respondents' software to be capable of substantial noninfringing uses and because respondents had no actual knowledge of infringement owing to the software's decentralized architecture, the court held that they were not liable. It also held that they did not materially contribute to their users' infringement because the users themselves searched for, retrieved, and stored the infringing files, with no involvement by respondents beyond providing the software in the first place. Finally, the courts held that respondents could not be held liable under a vicarious infringement theory because they did not monitor or control the software's use, had no agreed-upon right or current ability to supervise its use, and had no independent duty to police infringement.

Held: 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, going beyond mere distribution with knowledge of third-party action, is liable for the resulting acts of infringement by third parties using the device, regardless of the device's lawful uses. Pp. 10-24.

(a) The tension between the competing values of supporting creativity through copyright protection and promoting technological innovation by limiting infringement liability is the subject of this case. Despite offsetting considerations, the argument for imposing indirect liability here is powerful, given the number of infringing downloads that occur daily using respondents' software. When a widely shared product is used to commit infringement, it may be impossible to enforce rights in the protected work effectively against all direct infringers, so that the only practical alternative is to go against the device's distributor for secondary liability on a theory of contributory or vicarious infringement. One infringes contributorily by intentionally inducing or encouraging direct infringement, and infringes vicariously by profiting from direct infringement while declining to exercise the right to stop or limit it. Although "[t]he Copyright Act does not expressly render anyone liable for [another's] infringement," Sony, 464 U.S., at 434, these secondary liability doctrines emerged from common law principles and are well established in the law, e.g., id., at 486. Pp. 10-13.

(b) Sony addressed a claim that secondary liability for infringement can arise from the very distribution of a commercial product. There, copyright holders sued Sony, the manufacturer of videocassette recorders, claiming that it was contributorily liable for the infringement that occurred when VCR owners taped copyrighted programs. The evidence showed that the VCR's principal use was "time-shifting," i.e., taping a program for later viewing at a more convenient time, which the Court found to be a fair, noninfringing use. 464 U.S., at 423-424. Moreover, there was no evidence that Sony had desired to bring about taping in violation of copyright or taken active steps to increase its profits from unlawful taping. Id., at 438. On those facts, the only conceivable basis for liability was on a theory of contributory infringement through distribution of a product. Id., at 439. Because the VCR was "capable of commercially significant noninfringing uses," the Court held that Sony was not liable. Id., at 442. This theory reflected patent law's traditional staple article of commerce doctrine that distribution of a component of a patented device will not violate the patent if it is suitable for use in other ways. 35 U.S.C. §271(c). The doctrine absolves the equivocal conduct of selling an item with lawful and unlawful uses and limits liability to instances of more acute fault. In this case, the Ninth Circuit misread Sony to mean that when a product is capable of substantial lawful use, the producer cannot be held contributorily liable for third parties' infringing use of it, even when an actual purpose to cause infringing use is shown, unless the distributors had specific knowledge of infringement at a time when they contributed to the infringement and failed to act upon that information. Sony did not displace other secondary liability theories. Pp. 13-17.

(c) Nothing in Sony requires courts to ignore evidence of intent to promote infringement if such evidence exists. It was never meant to foreclose rules of fault-based liability derived from the common law. 464 U.S., at 439. Where evidence goes beyond a product's characteristics or the knowledge that it may be put to infringing uses, and shows statements or actions directed to promoting infringement, Sony's staple-article rule will not preclude liability. At common law a copyright or patent defendant who "not only expected but invoked [infringing use] by advertisement" was liable for infringement. Kalem Co. v. Harper Brothers, 222 U.S. 55, 62-63. The rule on inducement of infringement as developed in the early cases is no different today. Evidence of active steps taken to encourage direct infringement, such as advertising an infringing use or instructing how to engage in an infringing use, shows an affirmative intent that the product be used to infringe, and overcomes the law's reluctance to find liability when a defendant merely sells a commercial product suitable for some lawful use. A rule that premises liability on purposeful, culpable expression and conduct does nothing to compromise legitimate commerce or discourage innovation having a lawful promise. Pp. 17-20.

(d) On the record presented, respondents' unlawful objective is unmistakable. The classic instance of inducement is by advertisement or solicitation that broadcasts a message designed to stimulate others to commit violations. MGM argues persuasively that such a message is shown here. Three features of the evidence of intent are particularly notable. First, each of the respondents showed itself to be aiming to satisfy a known source of demand for copyright infringement, the market comprising former Napster users. Respondents' efforts to supply services to former Napster users indicate a principal, if not exclusive, intent to bring about infringement. Second, neither respondent attempted to develop filtering tools or other mechanisms to diminish the infringing activity using their software. While the Ninth Circuit treated that failure as irrelevant because respondents lacked an independent duty to monitor their users' activity, this evidence underscores their intentional facilitation of their users' infringement. Third, respondents make money by selling advertising space, then by directing ads to the screens of computers employing their software. The more their software is used, the more ads are sent out and the greater the advertising revenue. Since the extent of the software's use determines the gain to the distributors, the commercial sense of their enterprise turns on high-volume use, which the record shows in infringing. This evidence alone would not justify an inference of unlawful intent, but its import is clear in the entire record's context. Pp. 20-23.

(e) In addition to intent to bring about infringement and distribution of a device suitable for infringing use, the inducement theory requires evidence of actual infringement by recipients of the device, the software in this case. There is evidence of such infringement on a gigantic scale. Because substantial evidence supports MGM on all elements, summary judgment for respondents was error. On remand, reconsideration of MGM's summary judgment motion will be in order. Pp. 23-24.

380 F. 3d 1154, vacated and remanded.

SOUTER, J., delivered the opinion for a unanimous Court. GINSBURG, J., filed a concurring opinion, in which REHNQUIST, C.J., and KENNEDY, J., joined. BREYER, J., filed a concurring opinion, in which STEVENS and O'CONNOR, JJ., joined


  


Grokster Loses | 148 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
O/T, Links here, please...
Authored by: jbeadle on Monday, June 27 2005 @ 01:54 PM EDT
You know the drill.

Thanks,
-jb

[ Reply to This | # ]

Corrections here, please...
Authored by: jbeadle on Monday, June 27 2005 @ 01:56 PM EDT
So PJ can find 'em quickly...

Thanks,
-jb

[ Reply to This | # ]

Grokster Loses
Authored by: Anonymous on Monday, June 27 2005 @ 02:02 PM EDT
I don't think they've _quite_ lost, yet. It got remanded down to the lower
court. And Sony did survive.

And remember, BitTorrent was designed to move large files, and was originally
promoted as such, as well as being used now for such thing as World of Warcraft
upgrades.

[ Reply to This | # ]

Grokster Loses
Authored by: DeepBlue on Monday, June 27 2005 @ 02:04 PM EDT
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, going beyond mere distribution with knowledge of third-party action, is liable for the resulting acts of infringement by third parties using the device, regardless of the device's lawful uses.

Emphasis added by me - at first glance it seems a reasonable decision and draws a clear line in the sand.

---
All that matters is whether they can show ownership, they haven't and they can't, or whether they can show substantial similarity, they haven't and they can't.

[ Reply to This | # ]

Grokster Loses
Authored by: blacklight on Monday, June 27 2005 @ 02:07 PM EDT
Unles RIAA and its Hollywood ilk find a way to guarantee me fair use, I am: (a)
not going to the movie theater; (b) not buying any music. I might make an
exception if the movie is exceptionally "good", i.e. lots of sex and
violence or the music is from Credence Clearwater or Santana, but otherwise:
forget it.

[ Reply to This | # ]

Grokster Loses, Society wins
Authored by: RealProgrammer on Monday, June 27 2005 @ 02:10 PM EDT

As I understand it, the Court decided that the arguments over Sony were moot. They cited common law, which usually makes me feel good, because they usually get common law right :-).

And PJ, this decision, and the logic behind it, resounds reassuringly with your angst over the law being too difficult for the layman to grok. That's why I like it when they cite common law: I can understand it, and they're saying, "Look, this is the way it's always been."

They said that if you advertise your product on the basis of the illegal things it can do, you are liable for the illegal things that get done with it.

Any other decision would have been really, really bad.

Consider guns, knives, icepicks, crowbars, cars, or anything else than can be used to commit a crime, which is to say, anything. If a manufacturer were responsible for all illegal acts committed with its product, no one would make anything.

On the other hand, to hold someone harmless for the crimes committed with the tools they advertise for criminal purposes (just because those tools also have legal uses) is to invite a crime wave, fueled with 30-second spots on MTV.

The Court limited its language to "infringement" rather than broadly using "crime" the way I have, but IANASCJ.

---
(I'm not a lawyer, but I know right from wrong)

[ Reply to This | # ]

Grokster Loses
Authored by: Anonymous on Monday, June 27 2005 @ 02:10 PM EDT
For me, the key phrase is:

"shown by clear expression or other affirmative steps taken to foster
infringement"

Lacking "clear expression" one would not be held liable. If I made
guns and said, "Here's a great gun! Go shoot someone with it," I
could (should) be charged with aiding and abetting a felony. However gun makers
don't say such things as a rule so they don't get charged.

Similarly, if I write a p2p program and give it away but never say things like,
"Here's a program! Go get U2 songs with it," I would not be liable.
It's all about my affirmative steps, not hypothetical uses of a program I wrote.

[ Reply to This | # ]

Grokster Loses
Authored by: tknarr on Monday, June 27 2005 @ 02:16 PM EDT

I think the moral here is: don't use any illegal/questionable examples in your advertising. If you want examples of what your P2P system can do, stick to things like the actual copyright owner using it to distribute his music, or distribution of open-source software. Then the RIAA/MPAA will stumble on the roadblock the Court left: proving that you actually encouraged illegal actions when they can't point to anywhere you even mentioned illegal actions.

[ Reply to This | # ]

Paragraph "d"
Authored by: Anonymous on Monday, June 27 2005 @ 02:24 PM EDT
People have been saying this is a good decision because it doesn't mandate copy
protection nor does it mean that most vendors will be responsible for their
user's copyright violations unless they promote their product for use in
infringing activities.

I don't see how you can read it that way. I agree with most of the text of the
decision except for paragraph d.

"On the record presented, respondents' unlawful objective is unmistakable.
The classic instance of inducement is by advertisement or solicitation that
broadcasts a message designed to stimulate others to commit violations."

Ok, that's fine. If they really did promote it as an infringement tool that
would make sense.

"MGM argues persuasively that such a message is shown here. Three features
of the evidence of intent are particularly notable."

Well of course they do. Let's look at their three "features of
intent".

"First, each of the respondents showed itself to be aiming to satisfy a
known source of demand for copyright infringement, the market comprising former
Napster users. Respondents' efforts to supply services to former Napster users
indicate a principal, if not exclusive, intent to bring about
infringement."

So nobody can legally promote their product to existing P2P users, because they
are, in large part, infringing copyrights.

That seems pretty absurd, and not the type of subtle distiction I've been told
this court likes to use.

"Second, neither respondent attempted to develop filtering tools or other
mechanisms to diminish the infringing activity using their software."

Agh! The lack of filtering should be viewed as intent to promote infringement!
We are in serious trouble there. From Windows, FTP, web browsers, to Linux --
none filter content looking for violations -- and none should have to.

"While the Ninth Circuit treated that failure as irrelevant because
respondents lacked an independent duty to monitor their users' activity, this
evidence underscores their intentional facilitation of their users'
infringement."

I just can't say how upset this makes me. PJ, how can you square this with your
statement that Sony is left intact?

"Third, respondents make money by selling advertising space, then by
directing ads to the screens of computers employing their software."

Yes, this is a popular business model for Internet-based companies. Most Web
sites (including things like Google) work this way. That shouldn't be seen as
intent to promote infringement.

"The more their software is used, the more ads are sent out and the greater
the advertising revenue."

Yes, that's how advertizing usually works.

"Since the extent of the software's use determines the gain to the
distributors, the commercial sense of their enterprise turns on high-volume use,
which the record shows [in - is?] infringing."

So they make more money because of infringement. That is undoubtably true. But
that is also true of Windows. If people didn't run illegal copies of software
or use it to listen to illegal copies of music, fewer copies would be sold. I
suspect many fewer _computers_ would be sold.

"This evidence alone would not justify an inference of unlawful intent, but
its import is clear in the entire record's context."

The set of three are not sufficient? Then why cite them? To me, they are
wholly insufficient and can only serve to bias the lower court's analysis. The
court should have simply instructed the lower court to look for evidence that
the product was designed with knowledge of infringement, that advertizing
promoted use in infringement, or that they helped individual users infringe
(which I think may be the case based on the record).

Otherwise it sends the wrong message. People see "Grokster loses 9-0, P2P
found illegal, Grokster advertizing use in piracy". Instead of "Court
remands Grokster case because lower court did not analyze other theories of
secondary liability such as promotion of the product for infringing uses"
which is really what is happening. At least to my non-lawyer line of
thinking.

[ Reply to This | # ]

Grokster Loses
Authored by: beast on Monday, June 27 2005 @ 02:42 PM EDT
WSJ round-table discussion of Grokster

---
Delay is the deadliest form of denial. - C. Northcote Parkinson

[ Reply to This | # ]

Didn't His Billness himself
Authored by: Anonymous on Monday, June 27 2005 @ 02:48 PM EDT
say "... And as long as they're going to steal it, we want them to steal
ours. They'll get sort of addicted, ... "

This is promoting illegal copying as much as Grokster did.

[ Reply to This | # ]

Read the concurring opinions!
Authored by: overshoot on Monday, June 27 2005 @ 03:11 PM EDT
They're much more interesting.

Justice Ginsburg's concurring opinion (The Chief Justice and Justice Kennedy joining in) argues for revisiting Sony at some later date in the direction that the content cartel want to, with 90% infringement being enough to ban a technology.

Justice Breyer's concurring opinion (Justices Stevens and O'Connor joining) rebuts Ginsburg and points out that the trial record from Sony also identified about 90% infringing uses! Rather changes the picture. More interesting, they also point to evolving positive uses of P2P for non-infringing distribution and expect that, as with VCRs, noninfringing uses will grow with time. In other words, much what the EFF and others have argued.

They even cite Linux and Project Gutenberg.

Of course, they're not binding but the numbers are interesting (3 weighing in on each side) and they do show the direction the Court is thinking in.

If I might go out on a limb, I would suggest that the Ginsburg faction couldn't get a majority for opening up Sony so they all settled for overturning within the existing wording of Sony. I found the very narrow scope and efforts to stay well within the scope and wording of Sony rather suggestive.

[ Reply to This | # ]

Other Bad News
Authored by: maco on Monday, June 27 2005 @ 03:12 PM EDT
1. The new head of Oracle is ex MS VP - wonder how long he'll let Oracle's
pro-Linux stance remain intact.

2. Supreme court refused to come to journalists' aid in withholding sources -
any government or corporation can attack a journalist, mandating that sources
and work materials be revealed.

[ Reply to This | # ]

Concurring opinions are interesting especially Bryer's; Slashdot discussion
Authored by: Anonymous on Monday, June 27 2005 @ 03:14 PM EDT
Slashdot discussion here

Opinion and concurring opinions at Supreme Court web site here.

Or if you prefer to read them separately: Souter's The opinion of the court, signed by Souter,

Ginsburg's concurring opinion, signed by Ginsburg, Rehnquist, and Kennedy.

Bryer's concurring opinion, which defends the BetaMax decision, signed by Bryer, Stevens, and O'Conner.

Bryer's concurring opinion is a must-read.

The bottom line:
P2P is probably safe in the long run but vendors may have a bit more legal paperwork to cover their proverbial rear ends. Companies that openly tout their wares as a way to skirt the law are just asking for trouble.

[ Reply to This | # ]

  • I concur - Authored by: Anonymous on Monday, June 27 2005 @ 03:37 PM EDT
ok, so they should do the same with the automotive industry
Authored by: Anonymous on Monday, June 27 2005 @ 03:41 PM EDT
1 - the automotive industry has been subtlety promoting street-racing culture in
a lot of recent adds. even the styling of the cars is being shaped by this
counter-culture.

2 - street racing is clearly illegal.

3 - car manufacturers are promoting illegal and antisocial activities in the use
of their products.

4 - ???

5 - profit!!!

sum.zero

[ Reply to This | # ]

New definitions ...
Authored by: Anonymous on Monday, June 27 2005 @ 03:55 PM EDT
When did we decide to accept "government of the people, by the people, for
the people" turning into "government of the people, by the
politicians, for the corporations" anyway?

[ Reply to This | # ]

Extrapolate.
Authored by: ricerocket on Monday, June 27 2005 @ 04:00 PM EDT
Could this decision be used outside of file sharing, as it seems to indicate
that certain advertisements could be used as a culpability or liability for
criminal actions by someone for a product you sell?

What about car advertisments where unlawful activity is depicted on a regular
basis. Speeding and breaking other laws of the road are commonplace activities
in car advertisment, though they typically have small text depicting
"Closed course, professional driver, etc.. ".

I am sure you could think of numerous advertisements to apply that theory too.


Am I reading far to much into this decision?

[ Reply to This | # ]

A clear expression or other affirmative steps
Authored by: Anonymous on Monday, June 27 2005 @ 04:41 PM EDT
"(...) as shown by clear expression or other affirmative steps taken to
foster infringement, is liable for the resulting acts of infringement by third
parties. (...)"

<OverStretching concepts>
Hum. Methinks most low-level programming languages could also be put into this
basket, since almost all exploits are written in one of them.

So... Could IBM (for example) get sued because their C compiler was used to
write a worm? It is, after all, well-known that worms, virus, exploits, are
written in C...
</OverStretching concepts>

[ Reply to This | # ]

    (c) and (d) are the crucial parts, with considerably subtlety
    Authored by: Anonymous on Monday, June 27 2005 @ 04:55 PM EDT
    It doesn't say what it appears at a glance, part (d) in particular reflects on
    the record in this case.

    According to the Supreme Court

    (c) = If you distribute a device which you *know**will* be used for copyright
    infringement, then you're up to your neck in contributory copyright
    infringement

    (d) = In the case of Grokster's record, they *knew* it would be used for
    copyright infringement, they intended to profit from the contributory
    infringement,, and they *promoted* (i.e. encouraged) users to use the thing for
    copyright infringement, even if they didn't actively monitor or participate in
    what users were doing.

    Now the interesting, questions, not answered in the decision are

    Q1 - part (c) - if there was a case where instead of *know**will* vs
    *know**can** (part C) would the result be different?


    Q2 - part (d) - if there was a case where they knew, but didn't intend to profit
    from contributory infringement, would the result be different?


    Q3 - part (d) - if there was a case where they knew, but didn't intend to
    promote/encourage users to use the device for copyright infringement, would the
    result be different?


    [although the USC is not always self-consistent, these Q's, especially 1+3,
    would potentially be a way to make the decision consistent with Sony]


    Quatermass
    IANAL IMHO etc

    [ Reply to This | # ]

    Is a greater problem slipping by unnoticed?
    Authored by: Anonymous on Monday, June 27 2005 @ 05:56 PM EDT
    Here is an blognote about the other decision handed down at the same time as Grokster. The writer is claiming that it is FAR more dangerous.

    "This is very very big. This means that even though information services like IM and email don't have to pay tariffs or interconnect with others, they may (potentially) have to pay into the universal service fund, be subject to CALEA, provide enhanced 911 services, provide access to the disabled, and be subject to general consumer protection rules -- all the subjects of the FCC's IP-enabled services NPRM. I've blogged about this a good deal, and now it's coming true: the FCC is now squarely in charge of all internet-protocol enabled services."

    [ Reply to This | # ]

    Americans take BIG loss
    Authored by: Anonymous on Monday, June 27 2005 @ 06:53 PM EDT
    This liberal court has ruled that:

    1. Politicans may take my property away for the economic
    benefit of themself, their brother in law, or for some rich
    dude who no one has ever heard of.

    2. All music belong to the RICA and all video belongs to
    MPAA.

    3.Cable Internet Service Not Common Carrier so have the
    right to [and in fact if they do not do so can bbe sued] to
    only allow whot content the ISP decides id apporiate to
    pass on their system.

    And

    UT and WI have decided that they now have the right to
    regulate the content of all e-Mail world wide that may be
    eventually be forwared to some one in UT or WI.

    And the US press complaind about China and sensorship.

    [ Reply to This | # ]

    Companies can get sued
    Authored by: Anonymous on Tuesday, June 28 2005 @ 01:34 AM EDT
    but does it take a company to develop a p2p software?

    There are plenty examples of high-quality software in the open source camp,
    which are not made for profit, which don't rely on revenue from ads, but simply
    live from the enthusiasm of the developing community.

    If some people - not US citizens, preferrably - were to develop a p2p file
    sharing software which spreads like wildfire and which doesn't rely on central
    servers...wouldn't the self-proclaimed major win for the content industry be
    meritless?

    Companies can be forced to take their software completely off the market,
    companies can be obliged to implement strict filtering technologies. But does
    the same hold true for open source software? Once it is out in the wild, any
    attempt for subsequent restrictions would be merely optional, not mandatory.

    I don't think that the last chapters of the p2p story are already written and
    I'm very, very curious on how the future might look.

    [ Reply to This | # ]

    Wink Wink, Nudge Nudge
    Authored by: Anonymous on Tuesday, June 28 2005 @ 04:53 AM EDT
    Well perhaps this will wake up the internet community and save itself from its
    rather infantile disingenuousness. The real issue is the music industry's
    control of distribution. There's no value added by the music industry and
    there's no technological reason they're needed. If the internet community
    seriously starts working on a viable alternative for music distribution, it
    would be the beginning of the end for the music industry. There would be no
    shortage of music talent willing to sign on since most of them make no money off
    of the present scheme.

    [ Reply to This | # ]

    An opinon on PJ's comments
    Authored by: Anonymous on Wednesday, June 29 2005 @ 02:20 AM EDT
    Note this isn't my comments this the comments of another person.
    <a
    href="http://forums.whirlpool.net.au/forum-replies.cfm?t=361708&p=2#r36
    ">The person</a>

    Oh wow, a paralegal. They're the guys that do the photocopying, research and
    get coffee, right? He has even been given awards by the Inquirer, Techweb, OSDir
    and Linux Journal. They're all quite authoritative courts journals industry
    groups or associations firms IT sites, so naturally I trust their opinion when
    it comes to questions of law.

    I happen to have a copy of the judgment, and the judgment is available to all.
    Let's have a lookee on page 23, shall we?

    Three features of this evidence of intent are particularly notable. First, each
    company showed itself to be aiming to satisfy a known source of demand for
    copyright infringement, the market comprising former Napster users.
    StreamCast’s internal documents made constant reference to Napster, it initially
    distributed its Morpheus software through an OpenNap program compatible with
    Napster, it advertised its OpenNap program to Napster users, and its Morpheus
    software functions as Napster did except that it could be used to distribute
    more kinds of files, including copyrighted movies and software programs.
    Grokster’s
    name is apparently derived from Napster, it too initially offered an OpenNap
    program, its software’s function is likewise comparable to Napster’s, and it
    attempted to divert queries for Napster onto its own Web site. Grokster and
    StreamCast’s efforts to supply services to former Napster users, deprived of a
    mechanism to copy and distribute what were overwhelmingly infringing files,
    indicate a principal, if not exclusive, intent on the part of each to bring
    about infringement.

    Second, this evidence of unlawful objective is given added significance by MGM’s
    showing that neither company attempted to develop filtering tools or other
    mechanisms to diminish the infringing activity using their software.
    While the Ninth Circuit treated the defendants’ failure to develop such tools as
    irrelevant because they lacked an independent duty to monitor their users’
    activity,
    we think this evidence underscores Grokster’s and StreamCast’s intentional
    facilitation of their users’ infringement.

    Third, there is a further complement to the direct evidence of unlawful
    objective. It is useful to recall that StreamCast and Grokster make money by
    selling advertising space, by directing ads to the screens of computers
    employing their software. As the record shows, the more the software is used,
    the more ads are sent out and the greater the advertising revenue becomes. Since
    the extent of the software’s use determines the gain to the distributors, the
    commercial sense of their enterprise turns on high-volume use, which the record
    shows is infringing.1

    This evidence alone would not justify an inference of unlawful intent, but
    viewed in the context of the entire record its import is clear.
    The unlawful objective is unmistakable.

    hoooo look at that! Not one of those three would justify an inference of
    unlawful intent on its own, nor even the three together, but in light of the
    evidence of positive promotion and inducement, the inference may be drawn.

    Now you'll have to argue with the entire Supreme Court in this misguided quest
    to show what an asshat you are. Keep going though ...

    [ Reply to This | # ]

    Grokster Loses
    Authored by: pooky on Wednesday, June 29 2005 @ 01:33 PM EDT

    Wow lots of people are predicting gloom and doom for file swapping companies. I hear the legal guns are now getting pointed at eDonkey and LimeWire:

    http://news.com.com/Industries+digest+Grokster+ruling/2100-1 027_3-5767277.html?tag=nefd.lede

    The key to the entire thing seems to be the intent and behavior of the companies in question, is it not? That being said, it sounds like a safe bet that what is going to happen next is that the district court will re-hear this case with the guidance from the Supreme Court and there will be argument and evidence that Grokster and Kazaa intended to make money from infringement and promoted infringing behavior to further their own ends.

    The doom and gloomers seem to be saying that peer-to-peer is going to die as an industry thanks to this ruling. I say we'll be right back here in a year or two arguing over what consitutes sufficient promotion of illegal activity to meet the test just defined.

    The RIAA in it's infinite wisdom I'm sure will now claim that all peer-to-peer softare with no controls to prevent unauthorized copying (as if that were practical at all) will be liable for how people use the software, inferring that no one would create a peer-to-peer copying program unless they intended people to infringe with it. THAT is not going to pass the sniff test if I read the opinions correctly because it does not pass the test in Sony.

    -pooky

    ---
    Many Bothans died to bring us this information.

    [ Reply to This | # ]

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