Grokster/Morpheus Hearing Recap

TrentC writes "An article in The Mercury News reports that Senior Judge John T. Noonan, hearing arguments in the Morpheus/Grokster case (yes, it's still going!), scolded one of the attorneys for the recording industry for 'using abusive language' in referring to P2P networks as 'trafficking in pirated goods'. Noonan also questioned, in response to a claim that a study showed that 90% of the 750 million files shared on Morpheus was illegally distributed files, if the other 10% -- consisting of public-domain works, recordings of public performances and works where the copyright holders have granted permission -- consisted of enough non-infringing use to meet the criteria set forth in the famous Betamax decision. Maybe 2004 will be 'The Year The Courts Get It Right'?" We mentioned this hearing a few days ago. The EFF has audio of the hearing and case documents available. Since this case will likely decide the general legality of P2P services, it could be quite important.

Comments

Groklaw

[tr0llb4rt0]

http://www.groklaw.net/article.php?story=200402050 05057966

Key quote that may explain the judge's opinion

[blorg]

"Judge Sidney R. Thomas, [is] regarded as among the most technologically astute of the 9th Circuit judges"

Re:Where did they get their stats?

[stubear]

"Does that percentage account for people who own the songs they are downloading in some other media format?"

This is still not legal. Besides, if you want the song in another format and you have the original CD of the song why not just rip it yourself?

"Does that percetage account for people who tried to download a song but got a RIAA-hijacked song instead?"

Stupidity is not a good legal defense. Intent will kill you on this argument most of the time.

Re:Court-ster

[Txiasaeia]

"So how about this: what if a major company decided to use a p2p network as it's MAJOR outlet for file distribution. Say, a shareware program or game demo. This would be proof that p2p file-sharing programs are not exclusively used as "stolen-goods" transfers, it is a mainstream sharing network for permissable transfers. That would blow these cases wide open, as the judges are just looking for a reason to refer to Betamax here."

This has already happened -- Atari used Kazaa (normal) to distribute Temple of Elemental Evil; you could "unlock" the demo version to get the full version by buying it online. Hope this helps!

They'd just get sealed

[DoofusOfDeath]

The judge could easily seal the documents, I think. And even if he couldn't, the RIAA and MPAA would just pay Congress to change the laws regarding the issue. The idea would, at best, work briefly.

Re:Court-ster

[One Louder]

Just this last week, Lindows.com started officially distributing their "live" CD ISOs over P2P networks.

Re:What exactly is illegal

[Silburn_Luke]

Is it illegal to put mp3s you have legally purchased on a P2P network, and then download them from somewhere else, say at work? Would it be legal to put their DRM files (which I understand are trivial to break) up on the P2P network so you can download them from somewhere else?

IANAL etc etc.

It all depends upon which jurisdiction you are operating in, but generally speaking everywhere recognises 'fair use' provisions which would make your first scenario legal provided no one else d/loaded the MP3s. If someone else did d/load the tracks and you don't have permission from the copyright holder then you are guilty of infringing distribution and liable to some fairly serious legal penalties (provided an interested party can be bothered to sue you for it). Note that if you were in Canada (rather than, say, the US) you would be covered by the media levy for copyright holders they have their and your distribution would be kosher - I have no idea if this would apply if you were to distribute to someone outside Canada however.

The second scenario would follow the first insofar as distribution is concerned, but some jurisdictions (notably the US with the DMCA) make it an offence to bypass or crack DRM. In which case you could find yourself liable for circumventing the DRM even if you were in the clear with respect to distributing copyrighted material.

Regards Luke

Re:90% as measured how?

[Tassach]

That depends on who is paying them at the time.

Exactly. Statistics are always tailored to support whatever point you are trying to push. There are lots of different measurements you can take of a P2P network: number of files, size of files, number of users requesting a given file, number of users providing a file, number of transferrs, bytes transferred, and so on. With some creative interepretation, you can produce statistics all day long that support any conclusion you want to make.

Re:Where did they get their stats?

[FuzzyBad-Mofo]

Lack of good 'free' Windows software to do so? I haven't found any yet.

CDex is pretty good. Supports MP3, Vorbis, ect.

Re:90% as measured how?

[Razor Blades are Not]

It only makes sense to count the number of files, even in the case you are making.

Copyright isn't concerned about volume of data. The copyright in one 3 meg song is the same as that in the Lord of the Rings movie. The size of the file has nothing to do with it.

Similarly if you illegally download a tiny low-bit-rate highly compressed version of a song, it's the same violation as if you download the lossless (larger) version.

Of course, one might try to argue that the highly-compressed version might be a derivative work depending on how distinguishable it is, but that's a real stretch.

I can't believe noone has posted this groklaw link

[onceler]

The story on Groklaw

Includes the exact quote from the judge:

"Let me say what I think your problem is. You can use these harsh terms, but you are dealing with something new, and the question is, does the statutory monopoly that Congress has given you reach out to that something new. And that's a very debatable question. You don't solve it by calling it 'theft.' You have to show why this court should extend a statutory monopoly to cover the new thing. That's your problem. Address that if you would. And curtail the use of abusive language."

Good to see at least one judge "gets it".