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Grokster Wins Big in Ninth Circuit
The Importance of writes "Grokster has won big in the 9th Circuit Court of Appeals. Read the decision: [PDF]. It is a very strong decision, basically bringing the Sony-Betamax decision into the modern age. Of course, the decision does make it clear that if Congress wants to change the law, they can (cough*INDUCE Act*cough). Read the whole thing, the actual opinion is only 18 single-column pages. See also, commentary from Jason Schultz, Ernest Miller, Cory Doctorow, and Ed Felten. And don't forget to thank EFF."
Does anybody think that the US congress would have second thoughts concerning passing laws with the upcoming election? Or is this just a temporary victory?
Common sense? Huh? What's that? :P
We all know that common sense doesn't really exist for us /.ers, cuz that would mean we wouldn't be here right now... we'd be doing something productive (ahhhh!)
The catch is that this is a court of appeals. There's no way that the Supreme Court will deny the inevitable certiorari petition that the labels will be filing, which means that today's decision will quickly become moot. The court of appeals is not the appropriate venue to decide a point of law of this magnitude, and it's not going to.
The opinions stated herein do not necessarily represent those of anybody at all. Deal with it.
I've noticed that the tech story summaries are always devoid of any explanatory sentences... just a bunch of tech-talk. Granted that a huge majority of /. readers are techies, but learning to put things in simpler non-tech terms would help commoners understand these news stories.
Here's pretty good article that discusses the rate at which 9th Circuit decisions are overturned.
9th Circuit article
Based on what little editorial comment is contained in the article, this is not the sort of decision that tends to get the 9th circuit in trouble (to the extent getting overturned equates getting in trouble). Instead, the 9th circuit tends to get in trouble when its judges follow what their conscience tells them rather than what binding precedent dictates. In this case, it appears that the court was following US Supreme Court precedent to the letter.
It's only a matter of time until companies bribes lobby for a new law.
Reasons for this new law:
- companies suffer from bad business models
- terrorists use P2P to communicate
- terrorists coordinate their attacks with P2P
- corrupt politicans
- its a communist thing to share things
- WMD (This time for real)
Think about it!
Grundgesetz * 23. Mai 1949 - 30. November 2007 - http://www.vorratsdatenspeicherung.de/
Would you please explain to me why "the most activist" appellate court just issued a highly restrained opinion refusing to expand the scope of contributory and vicarious infringement? If the 9th Circuit were truly activist they would have caved in to the demands of MGM and the others and issued a ruling inconsistent with present statuory law, creating new positive law from the bench. This court is not activist, it is merely more liberal than many courts, just as the 4th Circuit is more conservative than most. Disagreement with the opinion is not an adequate basis for labeling a court "activist."
There was Cowboy Neal at the wheel of a bus to never-ever land.
First of all, the technology in question must be equally available for non-infringing uses. Napster wasn't. It was specifically designed for MP3 trading, and that's the big reason why it got smacked.
Forgive me for my outsider insight, for I've never used napster or any similar class of software technology. As you said, Napster was specifically for MP3 trading. This says nothing of the nature of MP3's, for instance public domain performances or songs distributed through Napster by the copyright holder. In that sense, the technology was equally available for non-infringing uses. Most people just decided to use the technology for trading songs they didn't have the right to distribute under U.S. copyright law.
but the technology itself was equally available for non-infringing uses. I could have as easily distributed mp3 files of my armpit making farting sounds, as I could have distributed my entire CD collection, no?
That their only approach now will to be going for the end users...
Oh Good!
That's who Hatch's minions should be going after - the people using P2P software for illegal purposes. That's not my opinion, mind you, but a statement of fact. Giving someone a copy of a copyrighted work without the copyright holders permission is illegal under current law.
Whether they actually can stem the P2P trading of "their property" in the digital age remains to be seen, however.
Soko
"Depression is merely anger without enthusiasm." - Anonymous
There has to be some kind of a catch.
The biggest catch is that the decision explicitly notes that Congress has the ability to render the decision moot by passing more restrictive copyright legislation (e.g., the INDUCE act).
So even in the "best case" scenario for the companies, where this goes all the way to the US Supreme Court and is affirmed, all Congress has to do is pass the INDUCE act. The decision is overturned, Grokster and company get new lawsuits filed against them, and given how ridiculously broad the INDUCE act is, they will almost certainly lose.
There's your catch.
Good. People distributing copyrighted material without permission of the owners are breaking the law. These distributors are the folks that should end up in court, not the folks writing software with plenty of legal uses. I would much rather have millions of end user lawsuits than laws telling me what kind of software can be written. If Grokster would have lost then every hacker that had ever worked on a piece of software that copied bits (from cp to ftpd) could have been liable for someone else's bad actions.
Personally I hope that the RIAA is successful in shutting down music file swapping. I can get along without a free copy of the newest Brittney Spears song, but I couldn't live with the type of Internet that the RIAA wants to create through legislation.
So the judge ruling in favor of the p2p networking has HUGE implications. This is a federal appeals court, the last arena in the judicial branch where the record companies can attempt to bully around distributers. So basically, this means: P2P file sharing isn't inherently illegal! This is the equivalent of the sony betamax decision that is discussed a few posts ahead of your comment. Because P2P isn't soley for illegal file sharing, P2P networks are not illegal. Joy! oh JOY!
Any true Conservative should have no problem with this decision. This is a perfect example of a party asking a court to create new law and the court refusing. There is binding precedent mandating this outcome and the court properly came to this decision. Now, there still remains the question whether Limbaugh is a true Conservative, but I'll leave that to others to fight over.
There was Cowboy Neal at the wheel of a bus to never-ever land.
The decision PDF explains everything, if you care to read it carefully: Napster was pretty much sued out of existence because the judge decided that they could stop users from trading pirated mp3s, but didn't do enough to stop them. Today's decision says that Grokster does not have the ability of stopping anybody from sharing pirated mp3s, so they cannot be liable for anything
imagine that this will go largely uncommented upon by the conservative community. It'd upset their faux populist image to come out so loudly in favor of the corporations that support them. They won't like it, but they won't be able to say anything about it.
Or it's possible that conservatives might actually support this ruling. You know, the whole individual freedom and limited government thing. (Which I freely admit the current administration has shown little respect for).
Cripes, when was the last time the EFF won a case? Reno v. ACLU?
Sklyarov mostly won, so that might count.
How to solve most of our problems: 1.Lots of nuclear plants. 2.Cure aging.
I believe the ability of the political process to truly restrict Fair Use (in the long term, at least) with new laws is ultimately limited, given the relationship of Fair Use to the First Amendment. The Supreme Court created Fair Use based on free speech concerns; given this pedigree, it's likely that the SC would overturn any attempt to restrict Fair Use based purely on economic protectionism. (Yeah, this is a convervative court, in every sense of the word, but that just makes it harder for them to ignore precedent)>
Is this normal style in opinions or is this rare?
Is it really surprising that people whose very livelihood depends on the meaning of words and phrases would appreciate stuble wit?
-conservative commentators hate the 9th circuit: agreed, the 9th circuit is easily the most liberal bench in the nation, thus it makes sense that conservatives would hate them.
-they (conservatives) would love to jump on this decision as more proof of how 'out of touch' the 9th circuit is: disagree I've yet to hear a conservative pundit blast the 9th circuit just randomly... the criticism is usually associated with a specific (or collection of) rulings. Thus your leap that conservatives would attack the ruling simply because of its source is a bit of a stretch.
-but somehow they must restrain from criticising the 9th, because "upset their faux populist image to come out so loudly in favor of the corporations that support them": strongly disagree You think that the movie/music/entertainment industry supports the conservatives in this country? try again They (the industry that you claim supports conservatives) give twice as much to the Democrats as to the Republicans. And look at the list of top 20 recipients. 3 Republicans, 17 Dems. If they weren't hedging their bets and giving to both Bush and Kerry, the total dolar figure would be even further skewed toward the Democrats.
Otherwise, nice attempt to slander the views of those you disagree with...
Oh,... and bonus points for this display of maturity:
what with them thar fedruhl judges legislatin from da bench and attackin our Christian heritage and whatnot
"It takes considerable knowledge just to realize the extent of your own ignorance." - Thomas Sowell
On one hand, this could seriously increase the pressure on Congress to pass an INDUCE-style bill to rip the heart out of P2P programs - something that a lot of Democrats and Republicans are eager to do...
- Pedophiles use P2P to propogate child pornography
If I hear one more argument about how my rights have to be curtailed For The Sake of the Children because some fringe element of society abuses those rights, I'll vomit.
I'll tell you what the 'effect' is! It's pissing me off!
The difference between Napster and Grokster, as explained in the Judge's opinion, is that Napster had a centralised index and were therefore in a "supervisory" role with the ability to prevent copyright infringement on a per-file basis. There is no centralised index for Grokster and the authors of the software do not therefore have a supervisory role. The software developers are unable to prevent individual acts of copyright infringement and therefore they do not have a duty to do so.
(The judge explains it better, but he used a lot more words to do it)
Read the PDF, it is surprisingly clearly written and demonstrates that judges do sometimes understand technology!
flossie
Write now. Defend liberty
First of all, the technology in question must be equally available for non-infringing uses. Napster wasn't. It was specifically designed for MP3 trading, and that's the big reason why it got smacked.
If I'm reading the decision correctly, Napster got smacked down because its servers directly handled queries for copyrighted works in question. Thus, Napster was directly contributing to the infringement at the time that the infringement occurred (the Grokster decision refers to this).
Secondly, the court decision clearly leaves the door open for Congress to take up the matter. They feel that the court is not able to make decisions about new tech (what they call 'Art') - that's Congress' job. Think they won't be listening to Big Music's dollars? You bet your ass they will.
Yes, the door has always been open for Congress to change things. The door has been open since the original Betamax decision. I still have my radio, I still have my VCR, and now I have my P2P as well.
Look at the constant extension of copyright in the case of interests like Disney. If Mickey Mouse's copyright gets extended any further they might as well just say, 'Infinity + 1' and be done with it.
One of the few things Congress can't do with regard to copyright extension is say 'Infinity +1.' Copyright has to be limited (as required by the Constitution), even if that limit is ridiculously high. Making copyright unlimited would require a Constitutional amendment.
Finally, this still won't prevent you from getting sued by the music and movie industries for sharing their material. All this does is postphone the final decision on PtoP. The question is whether or not Congress will limit the technology to non-infringing uses (almost impossible to do), or ban it altogether (more likely - it's easier).
MPAA/RIAA want to come after me for violating their copyrights? Let them, that's what copyright law is for. Limit the technology to non-infringing uses? The law already forbids infringing uses, the rights holders just have to go after the people who are actually infringing rather than go after the companies that provide the tools. Ban P2P? Perhaps with something like the INDUCE act, but we'll see if that gets anywhere.
So, when you consider how few and far between such victories are and how profound and lasting they tend to be, I think it's very much appropriate to jump up and down. I think I'll do so right now.
If you don't think that could happen, consider that there are sixty million peer-to-peer network users in the US, more people than voted for George Bush in 2000. The problem is then how to get all the p2p users to become politically active.
Find out how in Change the Law, which explores the history of copyright law in the US and suggests several specific steps you can take to bring about much needed copyright reform. The steps range from speaking out to practicing civil disobedience.
If you feel as I do that more people need to read what I wrote in my article, you can help by linking to it from your own web site, web log, or from message boards.
Thank you for your attention.
Request your free CD of my piano music.
The EFF is your "freedom to innovate" insurance policy. When you need to argue "Constitutional Rights aren't just the law, they're good ideas. Technological developments aren't just my job, they're a good idea" and you just don't have the time, money or the right words to say it right, the EFF says it for you, and says it very well.
When the MP/RI/XXAA / DMCA takedown letter arrives, 98% of other lawyers or civil rights groups are just going to hear "I work in technobabble, and now I'm being sued for neutrino transducer violations because of warp field coil incompatibility with carnivore but it really is a 4th amendment issue because of eiozh bhpaceog phshzt!..." when you call them up.
When you call the EFF up with your 'intersection of technology with legal rights' legal problem, the EFF will actually understand the issue and will want to help you. And, if they can afford to help you they will- but for that they need money. That means donations ahead of time. That's why you should support the EFF now. $2/week gets you the spiffy hat, or $2.09 /month the nifty bumpersticker AND 1st Amendment Rights carried into Cyberspace. Ask for 'Short' instead of Venti once in a while: you know you aren't supposed to have your caffeine all at once anyways. Or just drink regular coffee with cream and a little splenda. Not only do you save $, you'll lose #s (weight, not octothorpes). Protected rights & a smaller waistline: $2/week, $2/month. Best.Insurance.Ever.
Full Disclosure: I've met many of the EFF's staff, so I know how dedicated they are. Their staff attorneys aren't making much more than paralegals might make at the big corporate law firms. They're the not-profit, and We profit from their existance (are you listening- any encryption exporting companies? this includes You). So donate!
Actually there's no such thing as a binding precedent. Relevant case law is useful in general, and a good guideline for the lower courts. However, when you get all the way up to the federal circuit courts, you really have to pay more attention to the merits of the case, the law, and the constitution. Quite a bit of case law is constitutionally incorrect. If circuit courts simply rubberstamped old court decisions, bad rulings would never get overturned. Case in point--Plessy v. Ferguson was the relevant case law during Brown v. Board of Education. If case law was truly binding, Brown would have lost.
I don't disagree that the 9th Circuit Court diverges from case law perhaps more oven than other courts. However, I'd say it was because they actually consider the law and the constitution, while other courts simply won't re-examine bad precedents.
Congress's ability to change copyright law is constrained by the Copyright Clause of the Constitution. For example, they couldn't grant a perpetual copyright (although the current case law is that they can grant a very very long copyright, with no limit yet defined).
But yes, Congress has a huge degree of flexibility in modifying copyright.
What musicians need to do is find ways to use these systems to sell product, and from the judgement it seems some are already doing just that.
Does anyone here have personal experience of using the systems in this way that they can share?
Squirrel!
the Supreme Court will only be taking this if they are not sure they agree. They really dislike getting a case and upholding it cause it wastes thier time and they always have a backlog of cases it seems.
The court told them where to go to make sure that the court decision was overruled!
"BZZT Wrong answer" has to be the most annoying and childish catch-phrase of Slashdotters. It implies enormous intellectual superiority over the original poster, and yet a majority of the time, someone else (as happened here) proves the opposite is true.
Personally I hope that the RIAA is successful in shutting down music file swapping.
Do you really want that? One view is that the RIAA is just a businuess with a just reason to be attempting to prevent copywrite infringment. Another view is that it is an incredibly corrupt organization that exploits musicians, uses it's monopoly on the marketplace to stifle innovation, crush potential competion, promote cultural homogony, and finally subvert the copywrite laws laid down by the founding father of the USA to maintain control of it's IP for perpetuity.
I hope they die a horrible chapter11 death, so that we can move into the 21st century with a healthy and vibrant music industry. One of the US's largets exports is our culture. When our culture is comprised of nothing but crappy Brittney clones, what do you think is going to happen?
HA! I just wasted some of your bandwidth with a frivolous sig!
I'm still trying to figure out how you managed to open the shrink-wrapped software without automagically agreeing to the EULA.
You are sharp!
Ironically, the word ironically is often used incorrectly.
What's ironic is the RIAA and MPAA are making more money with filesharing running free than without it. There have been many articles already posted on slashdot pointing out this overlooked fact. There is an unscientific poll going on which gives some insight.
http://www.nuclearelephant.com/projects/sharing/
Check it out. I've personally purchased a few thousand dollars in DVD movies (read box sets) that I wouldn't have without P2P. Basically it's given me the ability to see if something sucks and should avoid it (or purchase it).
Has Comcast disconnected your Internet account? Same here. You can read about it at http://comcastissue.blogspot.com
I am sure that Microsoft would happily create versions of their software that only copied software correctly. Microsoft would simply make sure that all files had some sort of DRM flags, and it would obey them implicitly. In fact, Microsoft would love to see this sort of thing mandated by law because Free Software would never be able to comply. If I can get the source to cp then I can modify it so that it doesn't give a hoot about DRM. Microsoft would be happy as clams to see Free Software (and all of the other small-time developers) shut down for good.
That's why I will happily support the RIAA in their efforts to track down and punish file swappers. I can live without free beer copies of the latest boy band, but I can't live without Free Software.
I agree that the RIAA is evil, and I likewise agree that their day in the sun is coming to an end. However, I think that the correct way to get rid of the RIAA is for musicians and fans to work around the RIAA middlemen. There are plenty of bands that encourage people to download their music. If you really want to put a stake in the RIAA's heart find a few bands that encourage filesharing that you like, purchase their CDs, and tell your friends.
Downloading the latest RIAA boy band's newest album on Grokster doesn't do anything but give publicity to RIAA acts. The RIAA pays good money to the radio stations so that folks can hear their music for free. The RIAA doesn't hate P2P because the tunes are free, they hate it because they can't control it. The RIAA companies know that if customers get used to getting their music off of the Internet that their contacts in the radio and retailing businesses are worth a heck of a lot less.
Exactly. It's free publicity, and that's always good. The real reason that the RIAA and the MPAA don't like P2P is that they have set themselves up to be the middleman between the artists and the consumers. Right now it takes piles of advertising, retail contacts, radio programming contacts, etc. to get folks to see a movie, purchase a CD, or buy a DVD. The Internet changes all of that. Distribution becomes simple, and it becomes far easier for artists to do their own advertising and promotion. P2P networks essentially put the middlemen out of a job.
The RIAA doesn't like P2P because they can't control it, not because it is bad for sales.
That being the case, it is still their copyrighted material, and folks that distribute their copyrighted material without permission deserve to be punished. If you really want to break the backs of these middlemen download music from artists that encourage filesharing (there are piles of them).
"Personally I hope that the RIAA is successful in shutting down music file swapping."
No, you don't. It's the only competition the RIAA has. Until they lose their oligopoly status, I'd rather the civil disobedience continue. Heck, I wish the RIAA were actally suffering losses at the hands of music trading, sadly that just isn't happening.
At least we can thank Napster for making iTunes happen.
"Derp de derp."
Filesharing is not civil disobedience. People do not do it openly inviting the consequences nor do they accept those when if or when they come.
If you can't see the value in jet powered ants you should turn in your nerd card. - Dunbal (464142)
Common contract law holds that each revison of a contract is a new offer. Your revision of the contract would not be binding on [company] unless they agreed to it. In fact, there would be no contract at all until they do agree, since by drafting a new agreement you obviously did not agree to the extant EULA.
Which means that you'd be guilty of fraud, and potentially liable for a significant sum--possibly the maximum ammount of damages [company] could have suffered from your fraud--$4 bililon.
Not so. The person who makes the counteroffer is simply engaging in the battle of the forms. All the modification of the EULA would accomplish (assuming that your jurisdiction isn't one that mindlessly passed UCITA) is to create a situation where no agreement is reached.
Merely modifying a contract provision doesn't give rise to damages, or else there could be no negotiation process.
I am more than happy to allow the RIAA to control their proprietary files by suing folks that distribute them illegally. This doesn't wreck the network, it simply makes it more likely that folks will share files legally. When the P2P networks are chock full of music that the artists actually want you to share then the RIAA will well and truly be screwed because that will mean that people are getting their music fix without the RIAA middlemen. Once artists can get their music heard by a wide audience without the RIAA then the RIAA will cease to exist.
The RIAA was fighting for control of the Internet, and the courts just told them that since the filesharing networks have significant legal uses that they can't prosecute the creators of the software. However, they pointed out that Congress could change the law if they wanted. If the choice that we give Congress is the complete abolition of copyright or the legislation of copyright controls on all computers in the U.S. then Congress will probably choose to mandate copyright controls. If copyright controls are mandated across the board then you can kiss any chance of real change happening goodbye. The Internet will become just like radio is today.
That's why the end user lawsuits are so important. If it can be shown that prosecution curbs the illegal distribution of copyrighted files then Congress will be less likely to kill the Internet with legislation.
I'll take saving the Internet over stealing Boy Band MP3s every day of the week.