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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.
If the courts do get it right, you can be sure the legislature will come along and fuck it back up again. Gay marriage will be just one of the 'activist' court decisions that will get neutered.
Looks like a skeptical 9th U.S. Circuit Court of Appeals panel pressed the lawyers to defend their contention that file-sharing services should be stripped of the protections afforded technological innovation by the U.S. Supreme Court
I hope that the courts just let it go. And even if they do stop every single p2p network out there, someone else will start a new one, and people will share files over everything, heck even aim can be used. They will never be able to stop it. And for starting musicians, such as myself, it is awesome to get that kind of exposure so easily by spreading files on p2p networks.
When I see the figure that 90% is illegal, I have to wonder, is that 90% as individual items are counted? Or 90% by file volume?
When I run searches on P2P networks, there are a lot of porn videos advertising websites that are available, presumably legally. If there are 100 porn advertising videos that take up the space of one copy of Lord of the Rings, would the people that generated this statistic say that the content is 50% legal and 50% illegal? Or would they say that roughly 1% (1 video out of a total of 101) is illegal?
"90% of files transmitted were copyrighted files."
Does that percentage include traffic to Canadian computers, where such downloads are legal?
Does that percentage account for people who own the songs they are downloading in some other media format?
Does that percetage account for people who tried to download a song but got a RIAA-hijacked song instead?
What a waste of resources. They are playing at a very losing game. Before Napster there was always IRC, usenet, and FTP -- those are still there. After Napster came Morpheus/Grokster, which may/may not be left alive. But already the file sharing community has moved past into DirectConnect hubs, bit torrent, private WASTE networks, etc. Why do they even bother anymore?
"The market alone cannot provide sufficient constraints on corporation's penchant to cause harm." -- Joel Bakan
While that may help, it might be like saying Microsoft Windows is the most secure operating system among the average end user, or that Bob is more technologically astute than Bill because Bob can open a Dos prompt, and Bill has never used anything other than IE.
They say 90% of the material is copyrighted, but the statistic should rather be the percentage of copyright material that's unauthorized.
For example, Phish and Dave Matthews Band have been mentioned in some articles as giving their general OK to concert recordings being available on file-share services. These recordings are copyright of the respective performers. So do they fall into the RIAA's 90%? Or the remaining 10%?
The One Rule Of Chess You'll Ever Need: Don't play someone who carries a kit in their bookbag.
Post and share as much public domain and open source info/data as you can get your hands on. Label it as such, so everyone knows that it can be downloaded without legal ramifications. We have yet to fully demostrate the greatest benefit of P2P: All of humanity's creative capacity available for free use at the click of a button. Imagine what Ben Franklin, Einstein, or Mozart could have done with such a resource.
This is exactly what a library is except it isn't available, in general, in electronic form.
This would only work if it significantly affected the percentage of legal vs illegal files. The problem isn't demonstrating that legal uses are possible, even the RIAA/MPAA apparently admit in court that ~10% of files shared are legal, it's a question of what percentage of files traded are legal. So your hypothetical company would only be "useful" if it could significantly bump the percentage higher.
They are thus looking for an indication that at least a marginal percentage of usage is legal or non-copyright infringement use.
What I found interesting was the quote "One academic study found that 90 percent of the content exchanged on file-sharing networks is copyrighted, Frackman noted."
Personally, I'm amazed its not closer to 100%. That still doen't mean infringement. After all, isn't Linux copyrighted, and aren't I allowed to share it via a PtP network if I want?
So, IMO, the question isn't what percentage is copyrighted vs. public domain, but what percentage of it constitutes infringement?
So use Bittorrent. Does a damn fine job. Or grab it from your friends FTP. Or hell, contact one of the various companies out there that'll send you a cheap CD-R copy for $smallnum.00
Linux has substantial legal usage.
A VCR has substantial legal usage.
In many areas, lockpicking tools don't. Thus you have to be licensed. In others, slimjims are banned entirely. Sure both have legal uses (unlocking things you own,) but people found that their main use tended to be theft (picking other peoples locks to take their valuables/cars,) which is why the above happened.
I'm personally of the opinion that the P2P networks are simply a slimjim for copyrighted works. You can trade files P2P using FTP, HTTP, and IRC (even bittorrent) all of which have very substantial non-infringing uses.
Sure you can't easily find the latest warez, mp3s, DVD rips and cracked games, but hey, isn't that what all this is about?
No, you're wrong.
What the S.Ct. said in the Sony case was "Accordingly, the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses."
Thus, while it's ideal if the technology is actually being used in a noninfringing manner, it's still okay so long as it _could_ be, regardless of whether or not it actually is.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
Of course, those who pay attention to the FSF will not find this to be news. The FSF has discussed this misframing of the debate for some time now:
RMS has also been clear about this issue in his talks. He also takes on the misframing of the issue in the phrase "intellectual property", giving credit to GNU when discussing the variant of the GNU OS featuring the Linux kernal, saying "commercial" software to refer to non-free software, and distinguishing between the open source and free software movements.
Digital Citizen