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

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"

Court-ster

[CaptainAlbert]

I have an idea. Well, I kinda stole it from something I read at Operation Clambake. Many of Scientology's "secret" documents are now available to anyone for free, because they have been subpoenaed during a lawsuit.

So... perhaps one could run a filesharing operation based on the fact that documents presented as evidence in court become a matter of public record? Just get the files you were allegedly sharing to be part of the discovery, and bingo! Anyone in the world can download them!

This of course has the advantage that the courts can't shut it down or even declare it illegal... :)

Re:Court-ster

[eidolons]

Something else to consider, perhaps more to the point in this case. The 9th U.S. Circuit Court of Appeals is considering the Betamax case as a previous legal blueprint to follow in this case. They are thus looking for an indication that at least a marginal percentage of usage is legal or non-copyright infringement use.

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.

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!

Re:Court-ster

[shotfeel]

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?

90% as measured how?

[Chairboy]

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?

Re:90% as measured how?

[back_pages]

Right, it's like alcoholic content by weight or by volume. Doubtless the RIAA and gang will use whichever method paints the more dismal picture.

For my own part, I've downloaded probably 2-3 gigs of mp3s and programs, but I've also downloaded at least 6 gigs of linux ISOs. That's about 3000 illegal files and less than 20 linux ISOs. You know which method to use if you want to make me look like a bad guy.

(And I make ample use of MD5s when getting ISOs from P2P. It's not perfect, but I'm not doing anything critical with them and I haven't had a problem.. yet..)

Re:90% as measured how?

[LordK2002]

How many legal files within the container Linux ISO?

None, according to SCO.

K

I can't be...

[millahtime]

Do we have a Judge the Recording Execs can't pay off??

Where did they get their stats?

[GreenCrackBaby]

"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?

Not quite.

[Prince Vegeta SSJ4]

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.

Re:Not quite.

[phalse phace]

But Windows *is* the most secure operating system. My old Windows ME box is proof. The system has *never* had any problems, security issues, crashes, BSODs, etc. It's right here, sitting quietly in my closet with all my other junk, isolated from any and all power outlets and outside reaching lines. I've never imagined Windows being so pleasant.

90% (C)'d, but what about unauthorized?

[jeffy124]

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%?

If you really want to support...

[gothrus]

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.

Re:If you really want to support...

[aug24]

Imagine what Ben Franklin, Einstein, or Mozart could have done with such a resource.

Ignored it in favour of the excellent porn now available?

Justin.

A funny thing happened today

[heironymouscoward]

We organize the occasional party in our garage. The local equivalent of the RIAA (the Belgian SABAM) came knocking and asking for their cut. They were very reasonable, a clean 15% of the gross. I asked whether this covered live groups too. Oh yes. How about artists that are not members of the SABAM? Oh yes. But we're willing to make you a gooood price. At which point I realize that this is just the local mob.

It really makes me wonder... when you cannot stand up on stage and play your guitar for a public without having to fill-in a form and pay protection money. I don't see P2P ever being legit in such a world.

Go on, mod me -1 irrelevant, but this was the first time I saw a music industry enforcer in action and I was quite impressed.

Difference with Napster is lack of central index

[blorg]

"Substantial non-infringing use" is finally being accepted as a defence, because as Grokster/Morpheus don't have a central index, (unlike Napster) they can't control what the users do with the software.

I just love the bit where the recording industry present their "90% of the 750 million files" study, and the judge whips back with, well, 75 million files is a lot, isn't it? A few more legitimate uses like this one would do a lot to push the point home.

Re:it will never end

[Oliver Wendell Jones]

The distinction, however, is that these networks are designed specifically with the intent to facilitate copyright infringement. Or atleast, so goes the RIAA's argument.

Statements like this are like saying that "cars that can go faster than 65 MPH are intended to facilitate unsafe driving speeds and should be banned" or "knives that can cut through flesh, whether its dead cow or live human, are intended to facilitate the killing of people and should be banned"

Now, I willingly admit that I haven't read the history, background and FAQ of every P2P system in existence, but I have yet to see one with a home page that reads "Hello and welcome to the home page of KAZAA-GROKSTER-MORPHEUS-EDONKEY-NAPSTER-BITTORRENT - The most popular client written from the ground up to facilitate the illegal sharing of other people's copyrighted materials without their consent!!!!"

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".