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."

Comments

WOW

[illuminatedwax]

Holy fucking shit people. There has to be some kind of a catch. Common sense just doesn't *win* like this. There has to be something wrong.

--Stephen

Re:WOW

[synthparadox]

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!)

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[turnstyle]

"There has to be some kind of a catch"

The catch is more end-user lawsuits...

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[Sneftel]

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.

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[Tongo]

Common sense just doesn't *win* like this.

Especially with the 9th Circus Court of Appeal.

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[Aneurysm9]

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."

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[Shadowlion]

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.

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[Jason Earl]

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.

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[sangreal66]

That is hardly a catch. Congress always has the ability to change laws, that is the purpose of the Congress.

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[gottafixthat]

And here I thought the purpose of Congress was to provide balance and be the opposite of Progress. Silly me.

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[Richard_at_work]

My god, common sense on slashdot, where the hell did that come from?

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[Arngautr]

not just that but it's the ninth, not exactly well known for ruling based on law...

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[Shadowlion]

That is hardly a catch. Congress always has the ability to change laws, that is the purpose of the Congress.

It's a "catch" in the sense that even if the legal avenue turns up all roses for the P2P companies, the legislative avenue can completely obliterate any and all successes. It's a catch like EULAs are a catch. No matter how much you obey the restrictions of the EULA, the licenser can -- at their whim -- decide to terminate your rights to the software.

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[studerby]

Probably Omaha, or maybe Duluth.

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[alienw]

No matter how much you obey the restrictions of the EULA, the licenser can -- at their whim -- decide to terminate your rights to the software.

BZZZZT! Wrong answer. If you agree to a contract, then both parties have to respect it. If that wasn't the case, we wouldn't have any purpose for EULAs in the first place.

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[studerby]

The court of appeals is not the appropriate venue to decide a point of law of this magnitude,

If you'd bother reading the decision, you would realize that the 9th didn't decide any new points of law at all, they're merely applied existing law, particularly the Betamax decision that the Supreme Court back in the '70s.

The decision is entirely black-letter law, except for applying it to new technologies.

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[Demonspawn]

EULA's are binding?

Tell ya what. Next time you buy a piece of software, open yer favorite hex editor and change the EULA to: "1. The company who produced this software package will pay 4 billion USD for installing this software package."

Save the binary and install the package. Now, since you didn't agree to said EULA when you purchaced the software package, you are only bound by the laws of copyright. Under those laws, you are allowed to modifiy that which you purchace, as long as you do not distribute. If the software company's no-longer-existing EULA is binding, then so is yours.

Think about that for a second.

--Demonspawn

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[Bill, Shooter of Bul]

Interesting. You think the high court will hear this case? Hmmm. Any guesses as to how they would rule in such a case?

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[Oshuma.Shiroki]

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.

I wouldn't stretch it quite that far, but possibly. Good luck tracking them all down, though.

Personally I hope that the RIAA is successful in shutting down music file swapping. [...], but I couldn't live with the type of Internet that the RIAA wants to create through legislation.

Uhhh, huh? How do you think they're shutting down file-swapping? Psh, 'Insightful' indeed.

Fuck legislation, code what you want.

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[studerby]

Congress always has the ability to change laws,

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.

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[johngaunt]

Congress may pass the INDUCE act, good for congress. That will not make existing programs illegal, nor the people who wrote those programs criminals. The Induce can not go backward in time and change the law for the here and now. Some silly thing about ex-post facto something or other. I read about it on a boat, called the Constitution.

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[Fnkmaster]

Except that there's been substantial legislative intervention since the Betamax decision in the form of the DMCA and all its vagueries. I would still be very surprised to see this decision stand. Heck, I don't think Betamax would have gone the way it did in light of the DMCA.

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[studerby]

If you agree to a contract, then both parties have to respect it.

Actually, courts routinely rule that some contracts (or parts thereof) are unenforceable and therefore null and void.

For example, if John Doe signs an employment contract that says he'll never work for a competing company the rest of his life, any (competent) court in the U.S. will decline to enforce it. (Limited, short-term constraints are routinely upheld however.)

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[thefroatgt]

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.

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[UnknowingFool]

If you read the decision, the Court of Appeals addresses this point on page 26:

Indeed, the Supreme Court has admonished us to leave such matters to Congress. In Sony-Betamax, the Court spoke quite clearly about the role of Congress in applying copyright law to new technologies.

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[Sneftel]

Exactly. Whether Betamax is to be affirmed or mitigated when applied here, it isn't appropriate for the Court of Appeals to do it.

Now put the damn flamethrower down.

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[ceswiedler]

"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.

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[Sneftel]

True, but the point there is that Congress should explicitly legislate, not that they have. And in the absence of legislation particularly applied to electronic transmission, they're forced to delve into ugly, subjective, contradictory caselaw.

This does bring up an interesting point, however: state supreme courts commonly mandate that legislatures clarify or reword laws, but I can't recall a single instance of the SCOTUS doing this. Anyone wanna pipe up regarding this?

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[Sneftel]

The Supreme Court commonly accepts certs for cases that they expect to affirm, simply because they see a need to set a firm precedent. It doesn't "waste their time".

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[AnotherDreamer]

The larger "catch" is perhaps that we still don't have the right to privacy online. Now THAT would be a victory.

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[TiggertheMad]

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?

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[Caseyscrib]

I remember driving past a sign that read "If you're under 18, Buckle Up. Common sense for all." I couldn't figure out why they needed to put that on a sign.

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[BrynM]

There has to be some kind of a catch.

You mean there has to be some kind of Hatch . You can bet that firebrand will have a few (backed by big media) words to say about this ruling.

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[nepheles]

A threatened seat for a senator is even more worrying than a loss of income (they can find new vested interests). Let the two sponsors of the INDUCE Act know how you feel:

Orrin Hatch

Patrick Leahy

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[Stripe7]

The first uses of the INDUCE act is the RIAA etc use it to shut down P2P. After that what happens is the fallout of a badly written law and IPOD's go away, after which all Tivo's, all computer HDTV cards, TV-tuner cards, PC-cable-TV cards. Next in line will be Creatives current crop of sound cards. Any technology that allows you to do digtal-analog-digital at high quality will be outlawed. Creative will have to make new ones with built in DRM. All of Linux will have to have DRM or be outlawed. Any storage medium without DRM built in is outlawed.

Re:WOW

[j_w_d]

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.

I wouldn't stretch it quite that far, but possibly. Good luck tracking them all down, though.

Perhaps you should stretch it that far. There is no appreciable distinction to be drawn. Especially consider utilities such as ftp. But cp, mv and all the rest of them in Windows, DOS and CP/M as well.

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[That's Unpossible!]

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!

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[Archfeld]

The above SHOULD NOT be FLAME BAIT, If you follow the rulings of the various courts of appeal, the 9th circuit is ALWAYS on the cutting edge of things and OFTEN has rulings overturned. By the same token they also provide a really GOOD source of precident for future litigation. I really hope they put the responsibility with the people who deserve it, IF YOU DOWNLOAD MATERIAL you are not entitled to YOU ARE THE CRIMINAL, it should NOT be the one hosts it. I have an ftp server up so I can spool music to work, MP3's cannot reside on the systems, now I have a standard disclaimer but it is anonymous access, if someone goes there and gets all my music files, where does the fault reside ??? The one taking what they KNOW they are not authorized to have of the one making the files potentially available ?

Re:WOW

[studerby]

The DMCA doesn't change standard copyright infringement law all that much, which is what the 9th Circuit applied in the case we're talking about.

The main points of the relevant-to-the-digital-age portions of the DMCA are:

1. (as part of Title I; the WIPO Treaty Implementation) making it illegal to circumvent technological access controls *under certain circumstances* or tamper with rights-management information
2. (Title II: ONLINE COPYRIGHT INFRINGEMENT LIABILITY LIMITATION) giving service providers "safe harbor" from liability if they comply with the notice and takedown provisions
3. (TITLE III: COMPUTER MAINTENANCE OR REPAIR)Allows computer owners to authorize 3rd party repair people to make incidental copies of someone else's software (that the owner has the right to posess and use) in the course of repairing the computer. (This change was needed because a court found a repair person liable for copyright infringement for such incidental copying and Congress got convinced that vendor lock-in for maintenance was a bad thing.)
4. (TITLE IV: MISCELLANEOUS PROVISIONS) among other things, broadens the exemption for ephemeral recordings for broadcasters (allows DJs to record their shows way in advance of broadcast and keep them for a while afterwards), modified section 108 so that libraries and archives may make digital copies and not just "facsimile" copies, for archival use, modified the compulsory license terms for webcasters and includes them in the exemption for ephemeral recordings.

There were also a number of provisions tossed in the bucket that had nothing "digital" about them, such as Title V of the DMCA, entitled the Vessel Hull Design Protection Act.

You can see this for yourself in the Copyright Office's summary of the DMCA

If you know anything about copyright law, you'll see that the DMCA's provisions outlined above don't really affect infringement liabilty unless you're a "service provider" (or dealing with one) or are circumventing access controls, none of which is relevant in the Grokster case.

Re:WOW

[u-235-sentinel]

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).

Re:WOW

[NNKK]

Appropriate? It's their *job*. They're next in line. The district court applied Betamax, the decision was appealed to the 9th Circuit Court of Appeals, whose job it is to *gasp* hear appeals. Whether or not the Supreme Court (or, for that matter, a hypothetical en banc 9th Circuit) would uphold is a totally separate question. There is thing "inappropriate" about what the court did here.

Re:WOW

[Jason Earl]

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.

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[Demonspawn]

That's simple, actually. You cannot agree to a contract that you have not yet seen (or heard, in the case of verbal contracts). That's like me saying that by reading this post you have to pay me a million. I can't do that. I have to offer you the opportunity to agree (verbally or in writing) and then allow you to view the post. For example:

By replying to this post and including the phrase "Demonspawn, I'd like to see another reply." you will agree to pay me $100,000 USD for my reply to your reply.

Now if you reply to this post and include that phrase, you will owe me money for whatever reply I choose to give to you, as I have given you the opportunity to agree to the contract before selling you the goods. That is the crucial point... When I buy a shrink-wrapped copy of Word at Best Buy, I exchange $230 for a box with manuals and software inside. At that point I have agreed to no further conditions on the sale. I am bound only by applicable laws at that point, the biggest of which is copyright.

--Demonspawn

Re:WOW

[Jason Earl]

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.

Re:WOW

[studerby]

Betamax explicitly envisions itself being applied to new technologies, which is why it incorporates the substantial non-infringing use rule, and the 9th applied it without a hint of breaking new ground. There really really really just isn't any new legal issue here, despite the bells and whistles of bits and bytes. Adding on the internet doesn't make something new, legally speaking (except maybe at the patent office).

While it's always possible the Supreme Court might decide that they've screwed up and revisit Betamax, I'm 90% certain that they'll deny cert on the inevitable appeal.

However, if they *do* take the case, it will probably be because one of the justices wants to make new law on infringement liability; if Grokster et al loses, it'll either be an "activist" decision carving out a new liability theory, or a total repudiation of Betamax. Unfortunately, the latter could outlaw the Internet and the general purpose computer, so I'm betting against that possibility too.

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[Jason Earl]

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).

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[Jason Earl]

Would you believe Utah? That's right, I am just down the road from SCO headquarters.

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[dgatwood]

Must be something in the water....

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[Yavi]

You're almost right. The creation of existing programs cannot be made illegal, but the use can be. For example, you can not be charged with a crime for using a program before the act was passed, but if you continue to use it then it is no longer ex post facto. The program is not "grandfathered" into the old law.

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[mp3phish]

not to mention that there is no such use for an End User License Agreement in the laws of US Copyright. You can not control how people use something you wrote. You can only control how people COPY it (and then in only limited circumstance) So no EULA can take away rights which are already granted in standard copyright law, wether you signed the agreement in blood or not. Copyright law gives every US Citizen the right to use and copy a work provided they are within the US Copyright code.

Now, If microsoft encrypts a section of the code, and then lobbies congress into passing a law which says you cannot decrypt code which is encrypted, and then you try to do that, that is another story altogether. But that has nothing to do with EULA's which have never EVER been confirmed in court, and never will be. Simply because they are a tool used by publishers to scare their end users into submission.

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[NanoGator]

"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.

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[alienw]

No shit, some contracts are unenforceable. But you can't just go around revoking contracts as you please.

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[gpw213]

I really hope they put the responsibility with the people who deserve it, IF YOU DOWNLOAD MATERIAL you are not entitled to YOU ARE THE CRIMINAL, it should NOT be the one hosts it. I have an ftp server up so I can spool music to work, MP3's cannot reside on the systems, now I have a standard disclaimer but it is anonymous access, if someone goes there and gets all my music files, where does the fault reside ??? The one taking what they KNOW they are not authorized to have of the one making the files potentially available ?

Both are at fault and legally liable.

It is quite apparent that you did not read the legal decision. If you put up MP3's on a publicly accessable FTP server with anonymous access, the downloader is guilty of direct copyright infrigement, and *YOU* are guilty of contributory infrigement. From the PDF, there are three requirements:

Infringement by a primary infringer

knowledge of the infringement

material contribution to the infringement

The first is a given in your scenario. The third comes from your hosting the files on a machine you control, and configuring the FTP server for anonymous access, despite easily being able to restricted it to registered users. Now, all they need to do to prove number 2 is show that you had knowledge that someone other than yourself *ever* accessed those files and you did not immediately take action, and you get nailed to the wall.

By your argument, the original Napster would have been found not guilty, which was not the case. Simply putting up a disclaimer without taking any action to prevent abuse will not get you very far in a court of law. In fact, it would probably count against you, since it proves that you knew that the abuse was possible, and did nothing to prevent it.

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[Jason Earl]

Yeah, I will agree with that. I wish the RIAA was successful in shutting down illegal file sharing. I am more than happy listening to the music of folks that want to share.

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[SillyNickName4me]

> Would you believe Utah? That's right, I am just down the road from SCO headquarters.

*comfort*

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[That's Unpossible!]

That's simple, actually. You cannot agree to a contract that you have not yet seen

I know, I was being facetious. ;-)

By replying to this post and including the phrase "Demonspawn, I'd like to see another reply." you will agree to pay me $100,000 USD for my reply to your reply.

Now if you reply to this post and include that phrase, you will owe me money for whatever reply I choose to give to you, as I have given you the opportunity to agree to the contract before selling you the goods.

FUCK!

Re:WOW

[Planesdragon]

Save the binary and install the package. Now, since you didn't agree to said EULA when you purchaced the software package, you are only bound by the laws of copyright. Under those laws, you are allowed to modifiy that which you purchace, as long as you do not distribute. If the software company's no-longer-existing EULA is binding, then so is yours.

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.

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[bezuwork's friend]

I may misunderstand your post, but I believe you are not right.

A copyrighted work is a product like any other and if the owner chooses to license it rather than sell it, he or she can do so under whatever terms are agreeable to him or her. So long as the licensee agrees, the license is binding within usual limits on such things (no duress, no incompetance, etc.).

And EULAs have been upheld in court. For example, see the shrinkwrap license upheld in ProCD v. Zeidenberg.

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[killjoe]

EULAs are not contracts. The L in the EULA stands for license.

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[killjoe]

"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?"

I'll put it bluntly. In this case judicial conservatism is more aligned with the democratic party. This means the normally "activist" 9th circuit ruled in a "conservative" way. When this case gets to the supreme court it will be overturned by a court that is normally "conservative". The supreme court will hand down an "activist" verdict in order to further the republican party platform.

It has nothing to the with activism and everything to do with party politics.

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[warmgun]

But the A in EULA means agreement. A contract is an agreement.

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[geekee]

Of course, if people stopped stealing copyrighted material on p2p networks, it would become a non-issue, not worth the price of lobbyists or lawyers by either the RIAA or MPAA, and the govt. would leave us alone. But of course, instead of condemning the theives, we condemn the victims on /. 60 Minutes wasn't too sympathetic, and the mainstream will never be until we cleam up our act.

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[nberardi]

Well this rulling did come from the 9th Circus. This is the most over turned court in the country. And it is called a circus, because cases are usually overturned, and they base everything more on feelings than actual law. But what do you expect from the most liberal court in the US.

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[NeoSkandranon]

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.

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[Mac Degger]

Personally, I'd think a very good case can be made that now, for all intents and purposes, copyright /is/ already perpetual.

Current copyright is the author's life +70 years. The average lifespan is slightly longer than 70 years or so. That means that if an author writes something when he is born, and he is born on the same day I am, that I will pobably not, in my lifetime, be able to use his 'stuff'. Which pretty much makes his copyright perpetual to me. In this case, who cares about the rest of humanity? The copyright expiration date is of no use whatsoever to me.

Now, I do beleive that if someone is creative enough to make something I (or anyone else) finds interesting, (s)he should be renumerated for that effort throughout his/her life. But the descendants didn't do anything, so why should they continually reap the benefits?
Furthermore, if copyright is left at 'lifetime of author', I have a chance of using it...more than that, it's very likely I will, seeing as most interesting stuff you'd want to use is made by people older than you are (the stuff you saw in your childhood is mostly what you would want to use anyway!), and those people will very probably die in your lifetime, meaning that you /can/ use their 'stuff'.

So anything else than 'autors lifetime' means I can't use their 'stuff', meaning that for all intents and purposes, their copyright /is/ perpetual.

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[Frankie70]

How come Napster lost some years back ? Wasn't the case similiar ? Couldn't the Sony-Betamax precedent have been used then ?

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[Dachannien]

You mean that it doesn't matter that the appellate court was upholding fully the ruling of the District Court of Central California? I'd think that would have substantial impact regarding whether the appellate court's decision carried a lot of weight.

The fact that the district court's decision was also firmly grounded in legal precedent should make a difference as well.

BTW, IANAL ;)

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[MonkeyINAbaG]

Furthermore, if copyright is left at 'lifetime of author', I have a chance of using it...

Yeah... especially if you help them along to a shorter lifetime...
I can see the commercial applications of your idea already!

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[WorldRimWalker]

Indeed - the 9th CCoA recently overturned federal marijuana laws (in regards to medical marijuana) thru a strict reading of the Commerce clause. Trust the 9th to suddenly (re)discover the concept of enumerated powers at the most politically convenient moment. Don't hold your breath waiting for them to do it again.

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[TyrranzzX]

I, for one, would rather see the day where the RIAA/MPAA are long gone and some such business model exists that removes publishers from the content distrobution system completly since they are primarily the problem. It'd be really neat if you could buy music in high quality files for $.10 a pop or buy access to internet radio streams for like $10 a month. Sure, there'll still be piracy, but at least the artists will be getting a good deal of money for their music, and you can include extra's on a website or something.

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[EnderWiggnz]

here's what i want to know:

in PA, they recently passed a law allowing motorcyclists to NOT wear a helmet.

meanwhile, i'm driving a car, and can still get PULLED OVER for not wearing a seatbelt... wtf...

explain that to me.

Re:WOW

[JInterest]

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.

Re:WOW

[Paladin144]

The RIAA doesn't hate P2P because the tunes are free, they hate it because they can't control it.

And giving the RIAA the power to control file sharing networks (enough power/control to shut them down) would help our cause how, exactly?

Once they win control over one sector of the internet they can claim more. That's bullshit. The internet should be free. Period.

Re:WOW

[sbjordal]

Supreme Court prob. won't touch this one for two reasons: 1. This decision was not based on new laws. They only applied the ruling against existing laws. 2. The Supreme Court only deals with Constitutional cases. I fail to see how a copyright case has anything to do with our consitution.

Re:WOW

[Dwonis]

In Soviet Russia, the phrase catches YOU!

Re:WOW

[killjoe]

A contract is an agreement but an agreement is not a contract.

Re:WOW

[Doc Ruby]

The helmet doesn't stop a motorcyclist from damaging anyone in a collision, just the biker. The seatbelt also helps you retain control of the car. So the helmet decision affects only the biker, while the seatbelt decision is a matter of public safety.

Re:WOW

[Doc Ruby]

No, because the Bill Formerly Known as the Induce Act is spewing mainly from the office of Orrin Hatch (R-UT). That act is an end-run around decisions like the one we're celebrating in these threads - it's the act of Congress that the decision calls "unwise" in its closing paragraphs.

Re:WOW

[Doc Ruby]

The 9th Circuit is known for deciding cases on Justice more than other courts, when it's not deciding on mere law.

Re:WOW

[Doc Ruby]

No, he's not liable for any of those reasons, just like Grokster isn't liable. He *might* be liable if his publication of a central directory, available by "ls", made him enough like Napster to be subject to the previous "Napster" decision. If he disabled "ls", he probably would be enough like Grokster to be free of liability for any circumvention of his system.

Re:WOW

[Mycroft_VIII]

It's somwhat likely, given that in the rulling they even state there is a difference with the how the 7th has interpreted the same criterion. A difference that would be potentialy significant if it were used in this case.

Mycroft

Re:WOW

[Mycroft_VIII]

No it's not entirely flamebait, just a bit missinformed and going with the common belief that the 9th is overturned more than other circuit courts.
Actually in raw number of cases they are, but being the biggest jurisdiction they also hear the most cases. Percentage of overturns is pretty close to the others.

Mycroft

Re:WOW

[Mycroft_VIII]

That depends, does your disclaimer clearly state what you do and don't have re-distribution rights to?
An argument could made that since you are offering them it's reasonable to assume you have the rights to re-distribute them. Just like someone buying stolen goods isn't necessarily guilty of a crime, if they bought the goods in 'good faith'.
A friend of mine had a gun he inherited from his dad (a collectors piece, a WWII officers pistol). When it turned out to be stolen he showed how he'd not only inherited it, but the pawn shop reciept from when his dad had bought it several years ago while living on the east coast somewhere. This showed that he'd reicieved the gun believing it to be leagle and all he lost was the gun and some personal time providing copies of the records to the police.
Notice the RIAA is going after the people HOSTING the files, not the downloaders. Though probably not for this reason alone.
Of course if you are not a US resident then different laws may apply to you.

Mycroft

Re:WOW

[Jason Earl]

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.

Re:WOW

[Mycroft_VIII]

They also take cases somtimes to settle discrepancies between the appellate courts, and the rulling here pointed out that thier rulling doesn't entirely square with the 7th on some points. They also point out that they couldn't do anything with what the 7th said because thier own binding precedants would require the full court to do so.

Mycroft

Re:WOW

[Mycroft_VIII]

The judge stretched the hell out of a concept (basically treating the database sold as an on-going work where it might be reasonable for costs and such to change durring the work?!?!?!?) to stick it to a complete a-hole. Also the eula was in part upheld because the man new, or at least reasonably should have known (a notice to that effect was placed on the ouside of the retail box)
Do you have any links to other cases involving eulas, esp. the ones that come as a total suprise during install?
I wonder because I've seen programs that can be used creatively that once you buy them you find out they don't let you 'sell' anything you've created with them without paying a royality or buying a $5000 version.

Mycroft

Re:WOW

[gevantry]

Um, In most cases RIAA doesn't own the copyright, but merely the distribution rights for a particular arrangement of music. Thus, the CD you buy through an RIAA label made sound one way, but if you get the same collection of material directly from the band, it will be a little different.

The musicians own the copyrights, unless they're a house brand. What happens with the RIAA and the big labels is that the musicians usually get screwed out of their royalties by creative accounting tricks widely employed in the entertainment industry.

If at all possible, you should always try to buy your music directly from the band that made the music, IMHO. That way the band is sure to make more money and keep producing more of the music you want to hear!

Those are my priciples. If you don't like them, I have others.
--Groucho Marx

Re:WOW

[warmgun]

I suppose you're right. I was reading up on it at wikipedia, http://en.wikipedia.org/wiki/EULA, and I never thought to return the software because I disagree with the EULA. Is there a clause stating I have the right to get my money back?

If I buy XP Pro, read the EULA, and decide I don't want to agree to it. You can't read the EULA before opening the package so you have no way to know what it is before running the disc in your computer. But shouldn't I be able to get a refund? This would conflict with most business' no-refund policy on opened software.

Re:WOW

[Caseyscrib]

I agree with you. Here in NH you do not need to wear a helmet when riding a motorcycle, and if your over 18, you do not need to wear a seatbelt while driving. It used to be anyone over 12, but they changed it because soccer moms complained (yes, it really was some 'moms for america' group).

Re:WOW

[Catamaran]

We're not just talking about the latest Boy Band. Copyright is virtually forever. Suppose I were a classical music fan and that the RIAA owned the copyright for all of Bach's music. Your suggestion that I just listen to something else is not helpful.

From my point of view, P2P is the perfect way to work around the RIAA middlemen.

Re:WOW

[cshark]

I don't think you give these judges enough credit. But with a republican congress (who will no doubt consider this a work of "activist judges" at work) out there, I wouldn't depend on this ruling holding up for long. Don't get me wrong. I'm all for checks and balances so long as all the branches of government aren't absolutely insane. One out of three ain't bad.

Re:WOW

[Jason Earl]

The problem is that even artists that aren't part of the RIAA cartel still want to get paid, and they still want to be able to protect their copyrighted works too. Just because they allow people to share certain files doesn't mean that they want to give up on copyright entirely.

Bach is a bad example, because his stuff has been in the public domain forever. Sure musicians still can copyright their performances of his work, but there are so many folks willing to perform Bach that his tunes are usually available at a very decent price. You can get a classical CD very inexpensively, and you can get a used classical CD for almost nothing. Push comes to shove you can get a copy of the music yourself (free) and learn to play the tune yourself.

When you take someone else's copyrighted material and distribute it illegally you aren't "working around the RIAA middlemen," you are breaking the law. Worse, you are promoting RIAA acts. If you really want to screw the RIAA you have to learn to like acts that aren't part of the RIAA cartel.

Most folks that disregard other people's copyrights aren't doing it in protest of the current music regime. Instead they are doing it because the chances of getting caught are slim, and they like the idea of getting music for free. That's fine and good, but you should call a spade a spade.

Re:WOW

[Breakfast Pants]

Reading comprehension. Read the parents posts. Comprehend them. THEN use the reply button if you have something useful to add to the discussion.

What the parent said was that he thinks this ruling is a good thing and will switch legal pressure off of the people providing the programs to enable file sharing and onto the end users who are using file sharing to distribute files which are covered by copyright. This does not mean in any way that the RIAA will be "[given] the power to control file sharing networks." It means that that power will be taken away from the RIAA (it was in ways given to the RIAA in the napster case) and that they will be forced to prosecute end users who are actually doing the copyright infringement.

Re:WOW

[Anonymous Coward]

Yes - the clause at the end of XP EULA says something to theeffect of:

If you disagree to the terms of the EULA, your reseller has the option at its discretion to either offer a relpacement or a refund.

I used this and had to go through the small claims court right up to the wire before they aid up.

PS If they just offer a replacdement, it has the same EULA, so read it and reject it. Repeat as necessary.

Re:WOW

[True Grit]

This does bring up an interesting point, however: state supreme courts commonly mandate that legislatures clarify or reword laws, but I can't recall a single instance of the SCOTUS doing this. Anyone wanna pipe up regarding this?

I believe its because SCOTUS can't do what state courts can do. In a way its like the issue of the line-item veto for POTUS (effectively legal for states, not legal for the federal government). SCOTUS can't "edit" the law, they can only decide whether the law, in its entirety, is constitutional or not. AFAIK, most of the states aren't set up with the same kind of mechanisms to control their constitution and government the way the federal government is.

Re:WOW

[write_with_numbers]

I am the lead singer for one of those bands you mention. In the band's press packet I'm quoted as saying, "If you have the money, buy our CD. If you don't have the money, download the CD. The music and its message are more important than the money."

Don't be fooled by the RIAA. The average yearly take home pay of a band that makes a gold album (sells 100,000 copies) is around $200,000. Divided down that means that in a 4 person band everyone makes about $50,000 a year. What happens to the other $1,600,000 - $1,800,000 that their album makes? Part of it is spent on publicity and distribution, but way to much is spent on corporate fat cats.

A little over a hundred years ago there was no such thing as a musician whose songs made him/her rich. Back in those days, it was the music and the message that mattered. Please, support your local musicians, but also do everything in your power to help bring down this organization who enslaves and manipulates our music industry and destroys promising musicians who won't 'play ball'.

Always remember that you will put more money in the musician's pocket by attending a concert than you will buying their albums.

Re:WOW

[Paladin144]

Reading comprehension. Read the parents posts. Comprehend them. THEN use the reply button if you have something useful to add to the discussion.

I don't think you comprehend what I was saying. Perhaps that's my fault - I should've used crayon. And if my point was not adding anything, why did Jason respond?

The point is that shifting legal pressure from one group to another does not help us, any more than electing democrats instead of republicans helps us. The system is set up to fuck us either way. Grandparent poster seems willing to sacrifice one group's rights (ours) to protect a small, elite group (software creators). It's clear to me that we need both, or else the RIAA will just write (literally) a law that says filesharing programs can be written but never used. Pull your head out - this is prohibition. They can't make everything illegal, so they make as much as they possibly can illegal. I say we give no quarter.

Re:WOW

[Paladin144]

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.

This is the fatal flaw in your plan.

Most folks around here take their efforts as a challenge, an affront to our liberties. We'd work harder to get the files we want. Secondly, it would have to greatly distort the network, if not "wreck" it. And how, exactly, would the RIAA even accomplish this goal without resorting to driver-level DRM, like you mentioned earlier in the same breath as "Microsoft"? Remember, many/most of the people sharing files on P2P networks are oversees and thus out of the reach of the RIAA. Until they become a global cabal with UN-sanctioned powers we don't have to worry about them shutting down file sharing. No doubt they do crave more power, but if we don't give up and keep fighting they shall be reduced to a shell of what they are now.

I see no reason to give up - even a small part of the battle as you suggest. I think you're implying it will give us legal and moral cover, but I think you're wrong - it will do the opposite. I truly believe that music was meant to be free, and to betray that belief is to agree with you. I'm a musician myself, and I have MP3s available on my website. I hope to God that one day they are all over P2P networks. I'm not doing it for the money - I'm not making any.

Music is too precious to lock away, and it violates so many truths. Songs are given to songwriters by their muse. The songwriters are supposed to give the songs to us all. Anyone who betrays that does not deserve their million dollar home, swimming pool, bentley, etc.

Re:WOW

[armando_wall]

Personally I hope that the RIAA is successful in shutting down music file swapping.

You meant unauthorized music file swapping, I think.

There's plenty of (really good) music in the world, folks, not just the VH1 hits. Much of it are made by artists who want to share their creations at no cost (I'm one of them), and P2P is perfect for this task.

And yes, there is a huge lot of artists wanting to share. Go ahead and do a google search on MOD, S3M, IT and XM songs. Oh, the glorious days of trackers!!!

Or.... remember mp3.com? Not the new one, but the old one now renamed to GarageBand.com; damn I found there free, incredibly good music I still enjoy listening to.

Re:WOW

[NeoSkandranon]

Breaking the law...

Re:WOW

[WuphonsReach]

"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.

Ranks right up there with the show, "Missing Link", doesn't it? (Don't get me wrong, I'm in the same boat as you.)

Re:WOW

[Mac Degger]

Which isn't a legit criticism, because by your logic, you wouldn't be allowed to recieve your share of a dead parents will.

Re:WOW

[Catamaran]

Bach is a bad example, because his stuff has been in the public domain forever. Sure musicians still can copyright their performances of his work, but there are so many folks willing to perform Bach that his tunes are usually available at a very decent price. You can get a classical CD very inexpensively, and you can get a used classical CD for almost nothing. Push comes to shove you can get a copy of the music yourself (free) and learn to play the tune yourself.

That is exactly my point. The public domain is good.

I frankly don't care if people are downloading out of a sense of altruism or for pure self interest as long as it has the desired effect of bringing down the system.

Re:WOW

[gpw213]

I am not sure I agree with that. The key to Grokster being free of liability is that it does not hold or index any of the files, nor have any ability to restrict the usage patterns of the end-users. That is not the case here.

If I were he, I would eliminate the anonymous access. If someone cracks his computer and grabs his files when he clearly is taking reasonable precautions, he is very unlikely to be held accountable. As it is, he could be seen as abetting them.

Re:WOW

[Doc Ruby]

In the decision, Grokster's opponents claimed that Grokster could change their software to control who has access to the system, per user. Likewise, Archfeld could change their FTP server from anonymous to login, but until they do, their software doesn't distinguish. So their anon FTP analogy seems a very close parallel. This is more than a trivial argument, because anon FTP is widespread, and its legitimacy is important to many people's current activity.

Re:WOW

[I_M_Noman]

Push comes to shove you can get a copy of the music yourself (free) and learn to play the tune yourself.

Funny, I always have to pay for my sheet music. Yes, even Bach. Peters and Baerenreiter always want their cut, the bastards.

Re:WOW

[Jason Earl]

Most folks around here take their efforts as a challenge, an affront to our liberties. We'd work harder to get the files we want. Secondly, it would have to greatly distort the network, if not "wreck" it. And how, exactly, would the RIAA even accomplish this goal without resorting to driver-level DRM, like you mentioned earlier in the same breath as "Microsoft"? Remember, many/most of the people sharing files on P2P networks are oversees and thus out of the reach of the RIAA. Until they become a global cabal with UN-sanctioned powers we don't have to worry about them shutting down file sharing. No doubt they do crave more power, but if we don't give up and keep fighting they shall be reduced to a shell of what they are now.

The folks outside the U.S. should care what happens here in the U.S. because they are going to be greatly effected by it. If, for instance, strong DRM gets mandated here in the U.S. then you can bet your bottom dollar that Microsoft will push it out to the rest of the world. Sure, the technical among us will figure out how to get around whatever roadblocks Microsoft puts up, but the rest of the population will be stuck with DRM. The warez scene is an order of magnitude smaller than the music filesharing scene, and organized crime is heavily involved in it. If Microsoft and the RIAA get their way then the music sharing scene will suffer a similar fate. The music sharing scene works well today because you don't have to be a computer genius to participate.

I see no reason to give up - even a small part of the battle as you suggest. I think you're implying it will give us legal and moral cover, but I think you're wrong - it will do the opposite. I truly believe that music was meant to be free, and to betray that belief is to agree with you. I'm a musician myself, and I have MP3s available on my website. I hope to God that one day they are all over P2P networks. I'm not doing it for the money - I'm not making any.

My whole point is that whether or not your copyrighted material is on the P2P networks should be a voluntary thing. You want your music on the P2P networks, and that's a good thing, you should be able to put your music there to increase its exposure. If someone else doesn't want their copyrighted material on the P2P networks that should likewise be their choice. If the RIAA took your music, without your permission, and put it on one of their albums you would probably be upset. It's no different when you take someone else's copyrighted material and share it without their permission.

Over time more and more people are going to be looking to the Internet as one of their primary sources of new music. If the Internet is flooded with RIAA music then the chances of your music getting noticed is less than if the P2P networks contained primarily music that was legal to share. You might not be making money from your downloaded music now, but eventually there will be a breakout artist that went outside the RIAA system. When that happens the current music regime will crumble.

I agree that songs are too precious to lock away, but I also believe very strongly that artists should be able to make choices about how their music is shared themselves. Forcing artists to share is not right. I believe that the economics of the music industry are eventually going to force bands to allow downloading for the same reason that radio exposure is currently key to musical popularity.

Re:WOW

[Jason Earl]

Yes, that's it precisely. I think that in the long run legal music downloads is going to be one of the biggest and most important ways that people hear new music. If the RIAA doesn't want their acts in on the deal, so be it. There is plenty of good music available now, and there will be more as musicians see file sharing as a way to gain exposure.

Re:WOW

[Jason Earl]

You just aren't looking hard enough, my friend.Here's a source with plenty of Bach music.

When you purchase classic sheet music what you are really paying for is the actual printing and distribution process. That's why classical music is generally so much less expensive than copyrighted works. You can purchase classical sheet music from a wide array of vendors, and that keeps the price down. Printing still costs money though. Unless, of course, you download the PDF (or TeX source!) and print your own copy.

Re:WOW

[Paladin144]

The folks outside the U.S. should care what happens here in the U.S. because they are going to be greatly effected by it. If, for instance, strong DRM gets mandated here in the U.S. then you can bet your bottom dollar that Microsoft will push it out to the rest of the world.

You're dodging my point. DRM, which you and I agree is bad, is the only way to stop file sharing (and that is a stretch. Likely, nothing can stop it). Lawsuits can't stop it. You're right folks outside the US should be concerned, but I don't think you'll be able to ask them nicely to stop sharing files and get a response. Lawsuits are ineffective against them. DRM is the big bad gorilla we need to be afraid of.

If someone else doesn't want their copyrighted material on the P2P networks that should likewise be their choice. If the RIAA took your music, without your permission, and put it on one of their albums you would probably be upset. It's no different when you take someone else's copyrighted material and share it without their permission.

No, that's a huge difference. If the RIAA put my music on an album I would indeed throw a fit, but that's because they're intending to profit massively from my work. If the individual members of the RIAA put my tunes on mix CDs and gave them free of charge to their friends I would have no problem with that. BIG difference when commerce is involved. This is file sharing we're talking about, remember.

In a perfect world, the boy bands could tell us not to share their music and that would be fine. But now everything is being shared. It's not some malicious plot against artists - people have the data on their computers and it's only natural to share it. It's what the internet is all about. I know you want to protect the internet, but DRM will destroy it. On some level this whole conversation is pointless because people are going to write software and use that software to share files - no matter what the courts say.

Over time more and more people are going to be looking to the Internet as one of their primary sources of new music. If the Internet is flooded with RIAA music then the chances of your music getting noticed is less than if the P2P networks contained primarily music that was legal to share.

Two points: First, I would love it if there was a network dedicated to getting new, unsigned bands out there without being obscured by all the major label acts. I just don't think we need to make the existing P2P systems illegal (or effectively so, given massive RIAA lawsuits against end users) in order to make that happen. They are not mutually exclusive.

Secondly, the reason why I like existing P2P networks is the same reason you mentioned above: it's a great way to find new music/bands. I can't tell you how many hundreds of bands I've discovered this way. Since you realize this, it makes me wonder why your whole argument seems to be predicated on the RIAA-approved notion that file-sharing is somehow hurting artists. I'd say it's the exact opposite. It may hurt the MTV-boy-bands you're so fond of mentioning, but the world is not composed of boy bands (thank god). They may take it in the shorts a bit because they have the most to lose, but they won't be selling their mansions anytime soon. Most bands are being helped by the movement. People are discovering new bands, finding new genres of music that they love, and learning more about artists they thought they knew. And what about deceased artists like Otis Redding or Jimi Hendrix? Are they being harmed? I kinda doubt it since they're fuckin' dead. And don't bring up their estates. The way they so often exploit the dead artist they supposedly represent is sickening. The point is that artists benefit from P2P, and isn't that who we're looking out for? And if there's nothing wrong with file sharing why would we sacrifice it? To do so would only furher bind the artists to the RIAA, an orga

Re:WOW

[Jason Earl]

Look, this is a complex issue, and I appreciate being able to discuss it with you rationally, but I think you need to re-examine your argument at the core level. You have to realize that giving victories to the RIAA will only embolden it and make it more powerful. When it's more powerful it will have an even easier time pushing mandated-DRM through Congress. Think of RIAA/MPAA/Microsoft like they are Terminators. They can't be reasoned with. They can't be bargained with. They will not stop - EVER - until you are DRM'ed.

You and I agree on basically every point. I believe that P2P filesharing is going to be the dominant force in the music industry going forward. People like sharing music, and they like being exposed to a wide variety of music, and filesharing does this much better than radio and CD stores. I also agree that copyrights last for too long, and that something should be done to shorten the time it takes to get copyrighted works into the public domain.

Where we differ is that you believe that copyright should be done away with entirely, and I disagree. Actually you probably wouldn't even argue that copyright should be abolished completely. You would object, for instance, to the RIAA taking your music and putting it on one of their CDs, but you apparently don't object to someone distributing an RIAA tune to thousands of people. Unfortunately, this is a two way street.

The same copyright laws that allows you to keep "big business" from using your work without permission is what should keep folks from distributing Brittney Spear's latest album without permission. I believe that artists should have the power to choose for themselves how their work is distributed. In the long run the abuse of this basic right hurts all artists, even those artists that would generally like to share their work.

In the end economics is going to force the music industry towards filesharing. However, in the meantime the music industry has every right to sue folks that distribute their copyrighted material illegally. I would much rather see the industry use existing laws to stop the illegal distribution of their copyrighted material than to see them push for new laws that would mandate DRM and wreck the system for everyone.

When the RIAA sues folks that are distributing their copyrighted material they really are fighting for the rights of artists everywhere to choose how their work is distributed. Personally I think that the RIAA artists have made a poor choice about how to distribute their music, but it is their choice to make. When the RIAA seeks to mandate DRM, on the other hand, they are restricting my freedom to run the software I want to run. That's a big difference.

Re:WOW

[I_M_Noman]

Here's a source with plenty of Bach music

I spent yesterday afternoon looking for a free copy of the score to William Walton's Belshazzar's Feast. No luck. Your sites seem to be good for smaller works, but for the kind of large-scale choral and orchestral music I'm looking for I still have to go retail.

When you purchase classic sheet music what you are really paying for is the actual printing and distribution process. That's why classical music is generally so much less expensive than copyrighted works

Less expensive? Wha...? I had to buy a new copy of Dvorak's Stabat Mater last spring -- cost me $35 for just the choral score. I'd hate to think what the conductor's score cost. I'll probably have to get a new copy of Orfee for a performance next May, and since it's going to be a French edition it ain't going to be cheap. (Durand tend to be even more expensive than Peters, and that's saying something.)

Oh, and who says classical music (as opposed to Classical music) isn't copyrighted? Tell John Corigliano about that. Hell, even Classical scores can be copyrighted -- a particular piece edited by a particular editor, for example. (Like the Novello score for Messiah edited by Watkins Shaw, which, granted, is Baroque and not Classical, but you get my drift anyway.)

And they say golf is a rich man's hobby...

The most overturned appeals court?

[October_30th]

Wasn't 9th the most overturned appeals court?

Re:The most overturned appeals court?

[DAldredge]

If you check you will find out that they have had the most overturned cases by NUMBER, not by percentage.

They handle more cases that any other circuit court in the nation.

Re:The most overturned appeals court?

[js7a]

yes, but this decision isn't the sort that usually gets the 9th in trouble.

Re:The most overturned appeals court?

[Marxist Hacker 42]

Gee, I thought it was *exactly* the sort that gets the 9th in trouble- it's one that messes up the controls that the right wing conspiracy have put in place to keep the population down. Fair use is a *hippie commie* sort of thing, not the sort of thing any right-minded court would let loose, therfore it will be overturned.

Re:The most overturned appeals court?

[ElForesto]

That they are. Why do you think it's often called the 9th Circus?

On a more serious note, I'm glad to see that judges are restraining themselves from creating more laws. Thank you Michigan Supreme Court for reminding the judiciary that the courts are the expositors of law, not the creators.

Re:The most overturned appeals court?

[johnnyb]

What case are you referring to?

Re:The most overturned appeals court?

[queequeg1]

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.

Re:The most overturned appeals court?

[aardvarkjoe]

Yeah, cause we all know that right-wingers are the only ones with a vested interest in copyright controls.

Re:The most overturned appeals court?

[queequeg1]

Most likely the case discussed in this article:

Poletown Reversed

Disclaimer: the article doesn't really make the slightest pretense of being unbiased but it does highlight the issue well.

Re:The most overturned appeals court?

[damiangerous]

If you would check (I notice you didn't provide a source) you would see that the 9th leads in overturned cases in both percentage and number. They are just barely the busiest circuit, sure, but the second busiest circuit (5th) with only a 3% smaller caseload is less than one third as likely to be reviewed by the Supreme Court Source.

Re:The most overturned appeals court?

[Marxist Hacker 42]

A true left winger- and there aren't many of those in the United States- has no need for copyright controls because under a left wing logical system human survival isn't left to chance like it is under capitalism. The guy creating, creates merely for the joy of creating, and cannot not create because his brain isn't wired to live without creating. Therefore he must create, and will do so regardless of monetary reward. Thus, yes, the only ones with a vested interest in copyright controls are indeed the true right wingers- those attempting to live without creating, by ownership of the copyrights and patents and investments of previous generations. Those people have a BIG vested interest in copyright controls- unable to create themselves, they owe their very lives to the work done by previous generations.

I hack marxism to try to get it to work, and one of my rules for hacking marxism is "Those who do not produce, should not eat." Raising kids or crops is producing. Inventing new items is producing. Working in a factory is producing. Banking is NOT producing, nor is investing- that's on the parasite side of things.

Re:The most overturned appeals court?

[Anonymous Coward]

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.

Re:The most overturned appeals court?

[ElForesto]

Correctamundo! Unfortunantly, I have no toaster oven to offer you as a prize.

Re:The most overturned appeals court?

[kindbud]

Good source. Basically, this report concludes that the Supreme Court has it in for the 9th, and for any other decision that rules in ways the SC disagrees with.

It is true that the overall reversal rate of the 9th Circuit (76%) was lower than that of some other federal appellate courts -- most notably the 2nd, 5th, 10th, 11th, D.C., and Federal Circuits, which were all reversed 100 percent of the time this past term. Yet these "complete" reversal rates are likely caused by the U.S. Supreme Court's much less frequent review of those circuits along with the justices' proclivity to review cases in which they are predisposed to reverse the lower court's judgment. Specifically, the High Court decided only 19 cases from the 2nd, 5th, 10th, 11th, D.C., and Federal Circuits combined (two from the 2nd, six from the 5th, three from the 10th, four from the 11th, three from the D.C. Circuit, and one from the Federal Circuit), compared with the 25 cases the Supreme Court took up from the 9th Circuit alone, including the 19 that were reversed.

The Supreme Court has a vendetta against the 9th, in other words. No wonder they overturn them so often.

Re:The most overturned appeals court?

[Doc Scratchnsniff]

Your source seems to indicate that the DC district court was the most overturned by total cases handled in 2003 (though quick Googling did not turn up actual numbers for caseloads.) As for percentage of cases heard by the Supreme Court overturned (probably what the OP meant), here is a source to back the OP's comment.

Re:The most overturned appeals court?

[damiangerous]

The Supreme Court has a vendetta against the 9th, in other words. No wonder they overturn them so often.

A "vendetta"? Hardly. Your first statement is somewhat more accurate though you still use loaded phrases like "has it in for". Yes, the Supremes review the 9th more often because they most often overturn them. That's their job. The Supreme Court sets legal trends for every lower court in the country, so if they see one Circuit bucking those trends regularly of course they're going to bring them back in line.

It's not exactly a "vendetta" to do what they're supposed to do.

Re:The most overturned appeals court?

[damiangerous]

There are some circuits that have a higher (even 100%) rate of being overturned on review, yes. But they're ignored for that purpose because they have such a low volume only a handful of cases were reviewed. It's too low to get a statistically significant sample from, unlike the larger Circuits.

Re:The most overturned appeals court?

[Anonymous Coward]

If YOU would actually read the link you provided you would see that this analysis is only for one year and contains the quote:

It is true that the overall reversal rate of the 9th Circuit (76%) was lower than that of some other federal appellate courts -- most notably the 2nd, 5th, 10th, 11th, D.C., and Federal Circuits, which were all reversed 100 percent of the time this past term.

Re:The most overturned appeals court?

[studerby]

Interesting. If this had been the law in Texas, George W. Bush might not have been able to turn $600,000 into $14.9 million, through the power of eminent domain, with the help of the Texas Legislature and the city of Arlington.

There's something about taking someone's home to build a baseball stadium that really ticks me off.

Re:The most overturned appeals court?

[autophile]

Why do you think it's often called the 9th Circus?

Oh, I thought it was called the 9th Circuit of Hell.

--Rob

Re:The most overturned appeals court?

[ari_j]

Actually, there is such a thing as binding precedent. Precedents from a higher court in the same jurisdiction (the same line of appeals) must be followed.

IANALY

Re:The most overturned appeals court?

[killjoe]

I think it could be called a vendetta. It certainly makes sense that a conservative supreme court would want to wage war on a court they see as being liberal.

Re:The most overturned appeals court?

[Doc Scratchnsniff]

In 2003, 76.9% of all cases reviewed by the Supreme Court were reversed or vacated. 76% (fewer than average, though not by much) of the ninth's cases were reversed or vacated. Source

Re:The most overturned appeals court?

[damiangerous]

You're comparing irrelevant numbers. It doesn't matter that the SC has overturned 3/4 of the cases they decided to review and that they overturned 3/4 of the 9th Circuit cases. Those number have no real bearing on each other. It is significant that they decided to review a much higher percentage of 9th Circuit cases than any other.

Re:The most overturned appeals court?

[damiangerous]

Except that they're not seen as being liberal. 17 of the 28 judges were appointed by Dems, but 5 of those are considered solidly conservative. The high rate of reversals is because the 9th Circuit is activist. Like the article says, "Specifically, in pursuing political and policy preferences at the expense of established precedent and textual commands, some 9th Circuit judges seem to invite review and reversal by the U.S. Supreme Court." Decisions, even controversial ones, based on solid precedent don't get overturned.

Re:The most overturned appeals court?

[damiangerous]

Exactly. That's why the sample size is too small. We can't exactly say that the 2nd Circuit, for example, is overturned 100% of the time with any academic honesty. Sure, it's technically true, but the Supremes only reviewed two cases from the 2nd so it would be dishonest to make that claim. But when you talk about the top three busiest Circuits you can say with reasonable certainty that those numbers do say something about the Circuit.

Re:The most overturned appeals court?

[killjoe]

" Except that they're not seen as being liberal"

By who? Certainly they are seen as liberal by all the republicans. Since the supreme court is pretty solidly republican these days they would certainly view the 9th circuit as liberals to be smacked down.

Re:The most overturned appeals court?

[damiangerous]

No, it's not complicated at all so I'm not sure why you need to resort to this level of academic dishonesty. Of course, you're posting AC so you doat least have the decency to be ashamed of what you're saying.

I'll explain it one more time. When such a small number of cases are handled it can quite easily explained away as a fluke and not at all representative of the Circuit's decision making process. When a large number of cases have gone to the Supremes it's much easier to take the stand that it is typical of the Circuit. Despite using terms like "100%" this isn't a really math problem, it's a social discussion. Try not to let that confuse you in the future.

Grokster quickly acted

[Anonymous Coward]

Trading the court decision for the latest Jenna Haze porn and 7 mp3s to be named later.

Election issue?

[Anonymous Writer]

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?

Re:Election issue?

[wwahammy]

Its not an election issue because few people realize how significant fair use is. Congress will pass the INDUCE act when it comes up. Our only hope is that they can't get through in by election time (doubtful) and then it will just die (very, very doubtful). The INDUCE Act is going to pass sadly enough because the issues involved are not of interest to most people except large corporations that have so much to gain from it.

Hallelujah!

[tokered]

This is amazing!!!! I am jumping up and down in my office, my coworkers think I am crazy!!!

Notice that the judge also spoke in support of the Betamax decision!!! Take that Hatch!!!!

Do you think that this sends a strong statment to Congress? Does this reverse the Napster ruling?

Re:Hallelujah!

[pinchhazard]

Did you RTFA? They discuss the different methods of file-sharing, and Napster is included in the discussion!!!

Take that Hatch, indeed.

Re:Hallelujah!

[tokered]

RTFA? leet interp please?

I am still happy about this decision on a thursday afternoon. will make my weekend that much more cheerful =)

Re:Hallelujah!

[Keebler71]

If you are *actually* jumping up and down because of this - your co-workers are probably right.

Re:Hallelujah!

[tokered]

Yup, im jumping up and down and spinning in my chair- that makes my coworkers right. thank goodness I'm alone in my office, so all they hear is muffled exclamations. (they all just left anyway.) So he he ha ha!!!!

This is great news! Now if only we can convince congress to see the light...

Re:Hallelujah!

[NatasRevol]

Heh, you must be REALLY new here...

Re:Hallelujah!

[Sylver Dragon]

RTFA = Read The Fucking Article

Don't waste too much energy jumping around. All this does is get Gorkster off the hook for the current revision of software, they may still get nailed for some of the earlier versions.
Also, as the judge pointed out, congress can still pass a law stating that this is illegal, which may happen if Orrin Hatch gets his way. (Why do such people never get inoperable brain tumors?). Granted, the law couldn't be applied retroactively (expost-facto), but it could stop distribution and creation of P2P apps cold. At least in the US.

So would I be right in thinking...

[Anonymous Coward]

That their only approach now will to be going for the end users...
Oh Good!

Re:So would I be right in thinking...

[Soko]

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

More proof!

[grub]

Netcraft confirms it: the 9th Circuit Court of Appeals is not dying.

Re:More proof!

[Fnkmaster]

Hi, this post is all about the Ninth Circuit Judges, THE REAL NINTH CIRCUIT JUDGES. This post is awesome. My name is Robert and I can't stop thinking about the Ninth Circuit Judges. These guys are cool; and by cool, I mean totally sweet.

Facts:

1. The Ninth Circuit Judges are liberals.

2. Ninth Circuit Judges get overturned ALL the time.

3. The purpose of the ninth circuit judge is to flip out and create new laws out of thin air.

Ninth Circuit Judges can decide any cases they want! Ninth Circuit Judges piss off conservatives ALL the time and don't even think twice about it. These guys are so crazy and awesome that they flip out ALL the time. I heard that there was this Ninth Circuit Judge who was eating at a smoothie bar. And when some dude dropped his iPod the Ninth Circuit Judge legalized filesharing. My friend Mark said that he saw a Ninth Circuit Judge totally uppercut some law just because the law was passed by a Republican Congress and made no sense.

And that's what I call REAL Ultimate Power!!!!!!!!!!!!!!!!!!

Yay!

[Eric_Cartman_South_P]

Fun place to start, and explore, P2P:

http://www.zeropaid.com/

Read?

[baudilus]

HAHA you said 'read the whole thing' LOL

Like that'll ever happen on slashdot...

Re:Read?

[Alsee]

Like that'll ever happen on sl...

Oooh look! Shiny!

-

Re:Read?

[Nuttles]

are we supposed to click the links on the stories?..I thought they were just there for aesthetic's

Nuttles
Saved by Grace

9th circus court of schlamiels.

[yecrom2]

The were and still are the most overturned federal appeals court in the country. Occasionaly being overturned by themselves when they really go out on a limb.

matt

Re:9th circus court of schlamiels.

[Anonymous Coward]

From the wikipedia entry:
It is often called "the most overturned appeals court in the United States", but this is mostly a product of its high caseload. On a percentage basis, the circuit is not overturned much more than any other. (Indeed, in 2003 it had the least reversal rate of any appeals court with more than five cases reviewed.[1] (http://goldsteinhowe.com/blog/files/SemiFinalOT20 03CircuitScorecard.pdf)

Amusingly, this particular court is a frequent target for confused US conservatives in spite of the fact that (again, quoting the Wikipedia entry) it's a strong supported of states' rights (even if the state is sometimes psychotically liberal, re: California)
"The court is also on the leading edge of federalism, recently refusing to enforce federal laws against homemade pornography (US v. McCoy), homemade firearms (US v. Stewart), and homegrown marijuana (Raich v. Ashcroft). The court reasoned that application of such laws exceeded Congress's authority under the Commerce Clause, basing the decision on the Supreme Court case United States v. Lopez."

Re:9th circus court of schlamiels.

[Westech]

From the wikipedia entry: It is often called "the most overturned appeals court in the United States", but this is mostly a product of its high caseload. On a percentage basis...

It looks like the Wikipedia article that you referenced is one of the most overturned articles in Wikipedia! This is one of those controversial articles that is edited back and forth over and over again by people with opposing viewpoints.

In other news

[gorbachev]

Orrin Hatch's campaign contributions just grew by hundredfold.

Re:In other news

[interiot]

And the judges practically put a sign in their front yard that said "all brib^H^H^H^Hcontributions should go to Orrin instead":

• Indeed, the Supreme Court has admonished us to leave such matters to Congress. In Sony-Betamax, the Court spoke quite clearly about the role of Congress in applying copyright law to new technologies. As the Supreme Court stated in that case, "The direction of Art. I is that Congress shall have the power to promote the progress of science and the useful arts. When, as here, the Constitution is permissive, the sign of how far Congress has chosen to go can come only from Congress." 464 U.S. at 456 (quoting Deepsouth Packing Co. v. Laitram Corp., 406 U.S. 518, 530 (1972)).

Re:In other news

[Svennig]

Why is this modded funny? You don't just think the companies are going to take this decision lying down do you?

The court told them where to go to make sure that the court decision was overruled!

Re:In other news

[Sylver Dragon]

I think that bit was just added in to keep SCOUTS from taking this case when it is appealed, which I have little doubt it will be. Basically, its ment to force SCOUTS to either leave it alone, or look stupid in taking it. (e.g. You said not to do it, so we didn't, now you're saying we should?)

Re:In other news

[danila]

What a load of crap. When you buy something, it's yours forever. The labels did not license Mr. Hatch after all. So I am sure that the money went to other senators, to maintain the fairness of this great country.

Re:In other news

[wronskyMan]

I think that bit was just added in to keep SCOUTS from taking this case when it is appealed, which I have little doubt it will be. Basically, its ment to force SCOUTS to either leave it alone, or look stupid in taking it. (e.g. You said not to do it, so we didn't, now you're saying we should?)

Well I know the BSA is disliked on slashdot, but accusing them of taking over the supreme court (SCOTUS)seems a little extreme

Re:In other news

[Alsee]

Hatch doesn't need campaign contributions. He can re-win his district election after election without even bothering to advertize.

-

Re:In other news

[gorbachev]

They call them campaign contributions, I call them bribes.

They have nothing to do with getting re-elected. They've got everything to do with "getting access" to the "honorable" Orrin Hatch. i.e. getting to write legislation in Hollywood and RIAA HQ he then presents as his own.

A sentence or two...

[cytoman]

... about what the whole issue is about would help greatly.

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.

Re:A sentence or two...

[Aneurysm9]

Media Companies sued File Sharing Company. File Sharing Company claimed they were not facilitating copyright infringement because their product/service has "substantial non-infringing uses" and they cannot control their user's actions. Court Agrees. Everyone is happy in /.land until SCOTUS takes up the case in October.

Re:A sentence or two...

[reynhout]

That's funny.

Most tech-literate people I know find Slashdot summaries to be Highly Sensationalized, Often Bearing Little Relationship To Content Submitted! SCO suxxors!

So yeah, context is nice. But I'd settle for non-misleading.

Re:A sentence or two...

[flossie]

A sentence or two about what the whole issue is about would help greatly.

The link in the summary is to the judgement. As with most court judgements, the issue is explained in the judgement itself. The first section of the document explains the background very clearly. If you can't be bothered to follow the link, why should the submitter be bothered to rehash the judge's words?

Re:A sentence or two...

[Kenardy]

However, rephrasing things in non-tech terms means that they will never learn tech lingo because they will never need to. This would be a grave disservice to all the techie wannabees out there.

Moreover, if you can't run with the big dogs, stay on the porch.

Grokster doesn't control the users!

[chrispyman]

Well it can be argued that (to some extent) Grokster does slightly benefit from piracy, it's not their fault that people don't care about copyrights. Think of it this way: can you legally hold an ISP responsible for one users actions? Ofcourse not, and that's why you will have a hard time trying to successfully sue any of todays P2P software providers. Now if the law changes....

Re:Grokster doesn't control the users!

[shark72]

"Well it can be argued that (to some extent) Grokster does slightly benefit from piracy"

Huh? Benefiting from piracy is their business model. Either you use the free version, and they make ad revenue, or you pony up $30 for the ad-free version. It's pirated content that makes up the vast majority of the traffic. If, magically, all the unauthorized content were no longer available on the network tomorrow, the users would go away, their ad revenue would dry up, and they'd be out of business. That miniscule percentage of people who really are using Grokster to trade shareware and Linux distros will not support their business. The money's in the millions of teenagers who want the latest Britney or Linkin Park for free, and not the Slashdotters who think that getting KDE via P2P is a good idea.

By the way, edonkey and the rest also rely on piracy to stay in business. The people behind the file sharing platforms are not philanthropists or freedom fighters. They are businesspeople with business plans, forecasts, and revenue goals. It's a good business to be in, if you can keep the government off your ass.

Re:Grokster doesn't control the users!

[studerby]

Huh? Benefiting from piracy is their business model.

The 9th Circuit explicitly addressed this argument in their decision.

Explanation?

[Herms]

For those of us who don't know what the Sony-Betamax decision was, can someone please explain? What are the implications of this? Thanks!

Re:Explanation?

[andfarm]

Wikipedia sez: Sony Corp v. Universal City Studios, 464 U.S. 417 (1984) (Docket Number: 81-1687), is also known as the Betamax case. The Supreme Court of the United States found that the making of individual copies of complete television shows for home use is considered fair use, and that the manufacture of devices, such as Betamax or VCRs, to facilitate that is legal. Arguments were presented on January 18, 1983, and re-presented on October 3, 1983. The decision was announced on January 17, 1984. [source]

Re:Explanation?

[bbdd]

more here

Re:Explanation?

[The Slashdotted]

Sony v. Universal Studios "The Betamax Case" was a huge legal victory for fair use, stating devices that could be used for piracy, are not illegal, so long as their not universally used for piracy. If it went the other way, the VCR/Betamax/Ipod is as bad as a lockpick or crowbar. http://www.eff.org/legal/cases/sony_v_universal_de cision.php

Re:Explanation?

[bbdd]

crap, you hit submit while i was still previewing mine! that will teach me to take the time to recheck my link...

Re:Explanation?

[bbdd]

ok, then, due to the fact that my parent post is "redundant", i offer this to redeem myself.

still more

Re:Explanation?

[Compenguin]

Bzzz.... Wrong SONY made betamax, Universal was pissed about infringement. It was not Sony v. Betamax but Sony v. Universal.

Re:Explanation?

[Anonymous Coward]

The "Betamax Case"(1983-1984) was officially titled Sony Corp v. Universal City Studios, was an attempt by Big Media to sue Sony for manufacturing Betamax video tape recorders that could be used for copyright infringement. The Supreme Court ruled that:
a. home recording of television programs under certain circumstances is considered "fair use" and is therefore legal, and
b. that the manufacturer(Sony) of devices for this legal use could not be held liable for individuals using their product for illegal uses.(copyright infringement)

(Very abbreviated, but that's the gist.)

Re:Explanation?

[Aneurysm9]

If you don't have a clue what you're talking about, keep your damn mouth shut. Sony made the Betamax and was sued by Universal Studios. Also, it was the Supreme Court, nine Justices, not one judge, who ruled that technolgies that have "significant non-infringing uses" cannot result in contributory or vicarious liability for copyright infringement against their manufacturers.

Re:Explanation?

[Richard_at_work]

How did these cases get linked?! Todays analogous meaning of the Betamax case would be that Tivo devices and MP3 creation tools are not illegal for the purposes of recording broadcast material, whereas the Grokster case says that p2p networks, if suitably distributed, are not illegal because they cannot limit the usage of the network to legal kind. From my (admitably non legal) viewpoint, these cases are almost a universe apart in what they cover, and they certainly do not cover copyright infringement on p2p networks under the guise of fair use.

Linus expects us to honor his copyright when dealing with the linux kernel, lets do the same for all other copyright holders eh?

Re:Explanation?

[TejWC]

Sorry, that is what my dad said; last time I ask him for info...

Re:Explanation?

[Sylver Dragon]

Betamax was useful in establishing that if there are existing substaintial non-infringing uses of a device, that device could not be declared illegal simply on the grounds that it can allow for copyright infringement. Without that, the judge would have no reason to look any further into this. Granted, its a minor point, but one that must be established. Gorkster's software had non-infringing uses, therefore it is not just a copyright infringement tool, which would have been enough to get them in trouble.

Conservatives and the 9th Circuit

[revscat]

Seeing as how Limbaugh and the other conservatives tend to go rabid at just about every decision the 9th hands down, and in fact seem to thrive on those decisions, I 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.

This case is fairly obscure anyway from a mainstream media perspective, but Limbaugh, et. al. tend to take special pains to notice anything the 9th does, what with them thar fedruhl judges legislatin from da bench and attackin our Christian heritage and whatnot.

In any event, good for Grokster and good for the EFF. Nice for them to come out on the winning side of a case every great once in a while. Makes me feel like my money isn't going completely to waste. Cripes, when was the last time the EFF won a case? Reno v. ACLU?

Re:Conservatives and the 9th Circuit

[Aneurysm9]

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.

Re:Conservatives and the 9th Circuit

[ewhac]

Cripes, when was the last time the EFF won a case? Reno v. ACLU?

The EFF has been doing fairly well in the DeCSS case -- DVD-CCA vs. Bunner. The court hasn't given them a slam-dunk, but the EFF has been whittling away slowly and surely against the DVD-CCA's baseless claims of trade secret "misappropriation" and "improper" reverse-engineering.

DVD-CCA has claimed they have since obtained a patent on CSS, so they may attempt to enjoin distribution that way, but it looks fairly clear that their trade secret suit is going to ultimately fail. Too bad it took the court four years to figure it out.

Schwab

Re:Conservatives and the 9th Circuit

[bnenning]

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.

Re:Conservatives and the 9th Circuit

[Keebler71]

So let me get this straight...

-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

Re:Conservatives and the 9th Circuit

[Aneurysm9]

Are you talking about artists or executives when you cite those numbers? I'm sure you could say that, when looking at employees, the automotive industry, for example, donates more to Democrats than Republicans, but I somehow doubt the distribution is the same at the upper ranks of management.

Re:Conservatives and the 9th Circuit

[Experiment 626]

Because you, being a liberal, like the decision, you automatically assume that conservatives will not. However while some issues draw lines strongly along partisan lines (abortion, death penalty, religious freedom, etc.), others, like copyright law or space exploration have no particular "liberal" or "conservative" stance. People weigh in more or less independently of party affiliation. Orrin Hatch, a Republican, gets it wrong on copyright, but then so did Bill Clinton when he signed the DMCA and Mickey Mouse Act. Likewise someone advocating IP reform might be equally likely to come from either party. One party, as you point out, has been accused of being "in favor of the corporations that support them", the other is known for being cozy with Hollywood, and therefore the MPAA.

So, nice try, but there is nothing anti-conservative about this ruling. In fact, being such a conservative, I applaud the decision. After all, the argument EFF presented here is the same one conservatives have been making for years in the gun debate: this technology has lots of legitimate uses so don't blame the maker because some people are using it to do illegal things.

Re:Conservatives and the 9th Circuit

[Anonymous Coward]

"-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."

Nice skew there yourself. When I read the previous posters comment I came away with the idea that 'republican/right leaning commentators would not make a stink about this case beause they would be seen as being in bed with big business.' Also your numbers are great except that the 2004 election cycle had more democrats than republicans running for big money posts like president. Try 2000 and the numbers look more fair and balanced (8 out of 20). Finally it is the Republican parties projection of "faux morals" onto the rest of the country with their tendency toward things like censorship of media that hurts their donation cause with this group.

Consider your link de-bunked.

Re:Conservatives and the 9th Circuit

[Concerned Onlooker]

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

About as mature as the radcon phrase "weak-minded liberal." He's just learning to play by conservative linguistic rules.

Re:Conservatives and the 9th Circuit

[revscat]

Because you, being a liberal, like the decision, you automatically assume that conservatives will not.

Not at all. I think that the right wing propagandists -- what most people think of when they think of "conservative", and are whose allies are currently in control of the reigns of power -- will remain silent on this issue because they fundamentally disagree with it, but can't say anything about it.

In fact, they will not mention it BECAUSE so many conservatives will agree with the decision. They want their listeners/viewers to hate the 9th Circuit, unthinkingly and immediately, and will report nothing that might lessen that hate.

So, nice try, but there is nothing anti-conservative about this ruling. In fact, being such a conservative, I applaud the decision.

Good, and so do I. You and your ideological allies aren't in control of the GOP, however. Rupert Murdoch and Sun Yung Moon, unfortunately, are.

Re:Conservatives and the 9th Circuit

[mOdQuArK!]

Or it's possible that conservatives might actually support this ruling. You know, the whole individual freedom and limited government thing.

That's Libertarianism, not "conservatives". The current crop of conservatives only believe in limited government regulation when it comes to their pocketbooks, like regulations for public safety (clean air/water) or public welfare (education). When it comes to stuff like personal behavior, like consensual behavior in the bedroom, then they're all in favor the government cracking down on crap like that, since allowing that kind of immoral behavior that will "destroy the fabric of society". (Apparently letting poor people die due to pollution, disease and/or crime isn't really a problem for the fabric of society.)

The current crop of liberals tend to push the exact opposite viewpoint.

Either viewpoint leads to "big" government, although I'll leave it to the audience to decide which one is more likely to result in a "healthy" overall society (I'm sure my own biases are glaring through.)

Re:Conservatives and the 9th Circuit

[kindbud]

Any true Conservative should have no problem with this decision.

Any true skeptic should recognize the No True Scotsman fallacy when he sees it. Despite what you think conservatives believe and advocate, a large number of people in and out of government, who are considered by themselves and by everyone else to be "conservatives," are advocating and implement bigger government and a curtailment of civil liberties.

Complaining that they are "not true conservatives" does nothing to illuminate the debate, and only serves the purpose of "shooting the messenger."

Re:Conservatives and the 9th Circuit

[angle_slam]

Incredibly uninsightful comment. The record and movie industries lobby *both* Dems and Reps. In fact, they lobby Dems more than Reps. Just because Hatch is a Rep doesn't mean that Dems are on the other side. They aren't.

Re:Conservatives and the 9th Circuit

[geekotourist]

> Cripes, when was the last time the EFF won a case? Reno v. ACLU?

Well, from their recent legal cases / activities (including amicus briefs) they've had:

• U.S. v. Elcomsoft... remember Dmitri?
• Pre-Paid Legal v. Sturtz... protecting John Doe's from disclosure w/out proof of libel.
• Medinex v. Awe2bad4mdnx & Rural/Metro v. Doe same type of cases.
• American Amusement v Kendrick... anti-censorship
• Banco Nacional de Mexico v. Narco News... protecting journalists' rights
• and more...
• and yet more...

. But yes, the EFF has also lost cases. 2600 magazine for example. It was an expensive fight and they EFF didn't have the most sympathetic posterboy as a client. For some unknown reason the RIAA/ MPAA / FBI doesn't go after 'Widows, Orphans and Kittens Magazine' first. Yet the EFF took on the case anyways because it was important. They stopped before the Supreme Court because it was obvious they'd lose there and it was the wrong time for the wrong precedent.

Summary of the case

[Jack Greenbaum]

It would have been useful if this post had mentioned what the case was about. Here is the summary paragraph from the PDF:

This appeal presents the question of whether distributors of peer-to-peer file-sharing computer networking software may be held contributorily or vicariously liable for copyright infringements by users. Under the circumstances presented by this case, we conclude that the defendants are not liable for contributory and vicarious copyright infringement and affirm the district court's partial grant of summary judgment.

Don't jump up and down yet...

[Chordonblue]

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.

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.

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.

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).

Re:Don't jump up and down yet...

[happyfrogcow]

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?

Re:Don't jump up and down yet...

[Aneurysm9]

As someone else pointed out, Napster was equally available for non-infringing uses. MP3 can be used to encode non-protected material just as easily as protected material. Further, it was trivial to add an .mp3 extension to your text, video, or other file and use Napster to exchange those.

More importantly, and thankfully, Congress cannot extend copyright rights to "infinity + 1" though it may seem they are trying at times. The Constitution says that copyright and patent monopolies may be granted for limited times. Limited is a very fuzzy term, as the Eldridge case showed, but at the very least they can only extend incrementally in limited terms forever, and I think people will eventually get tired of that and do something.

Re:Don't jump up and down yet...

[mmusson]

Infinity + 1 is still Infinity... (hey, we are all geeks here)

This decision isn't directly about copyrights. They have no said it is legal to download you favorite musician's mp3.

What they are saying is that if you do, you are the one breaking the law and not the authors of the software program that you use to download the mp3.

Re:Don't jump up and down yet...

[Chordonblue]

I think the problem was that Napster by definition was an MP3 trading technology. Could it have traded other files? Sure. And it did. All you had to do was rename files to that extension.

What was attacked by the courts in their case was the centralized directory system. Since Napster was hosting the directory servers, the courts assumed then that it had control over what was going through it's network.

What the current crop of PtoP apps have done is not limit the types of files being traded. Without limiting themselves, it's hard to say whether Kazza or Morpheus is primarily designed for music trading - legal or not. Broadening the scope of the app made the courts have to seriously think about whether they could apply such specific law here.

Re:Don't jump up and down yet...

[gruntled]

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)>

Re:Don't jump up and down yet...

[kent.dickey]

More importantly, the decision said that this is only a partial decision--other matters were not resolved. The key paragraph from page 25 of the decision:

Resolution of these issues does not end the case. As the district court clearly stated, its decision was limited to the specific software in use at the time of the district court decision. The Copyright Owners have also sought relief based on previous versions of the software, which contain significant--and perhaps crucial--differences from the software at issue. We express no opinion as to those issues.

So grokster and others may still be found liable for older software versions.

Re:Don't jump up and down yet...

[kfg]

If Mickey Mouse's copyright gets extended any further they might as well just say, 'Infinity + 1' and be done with it.

If you think the Mickey Mouse laws are bad you should check out the Peter Pan laws.

Think of the children.

KFG

Re:Don't jump up and down yet...

[flossie]

Napster ... technology was equally available for non-infringing uses

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!

Re:Don't jump up and down yet...

[SpecBear]

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.

Re:Don't jump up and down yet...

[Frizzle Fry]

What about the Robin Hood laws?

Re:Don't jump up and down yet...

[swillden]

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.

MP3 trading can also be non-infringing.

The reason Napster got smacked was because they had the technological means to stop infringing trading. Grokster has no way to control what users trade (by design, but that's not relevant).

Re:Don't jump up and down yet...

[Mark_in_Brazil]

Read the PDF, it is surprisingly clearly written and demonstrates that judges do sometimes understand technology!

Yes...

My favorite part is this:

Further, as we have observed, we live in a quicksilver technological environment with courts ill-suited to fix the flow of internet innovation. The introduction of new technology is always disruptive to old markets, and particularly to those copyright owners whose works are sold through well established distribution mechanisms. Yet, history has shown that time and market forces often provide equilibrium in balancing interests, whether the new technology be a player piano, a copier, a tape recorder, a video recorder, a personal computer, a karaoke machine, or an MP3 player.Thus, it is prudent for courts to exercise caution before restructuring liability theories for the purpose of addressing specific market abuses, despite their apparent present magnitude.

This is amazing. A court has correctly recognized that:
1) all the whining about "loss of jobs" and "loss of revenue" is just the way capitalism works - they didn't use the traditional /. example of automobiles taking revenue and jobs from many in the horse-drawn buggy industry, but the point is made; and
2) all the wailing and gnashing of teeth by "copyright holders" in the past (like with the player piano and the VCR) turned out to be incorrect. Remember when the Betamax was going to put studios out of business? Now recorded versions of films are a huge part of studio revenues.
It's really refreshing to see a court get it right.
As for the complaint (seen in several posts in this thread) that the decision leaves the door open for Congress to legislate this away, well, sorry... that's how the US system works. The legislative branch makes laws and the judicial branch can't keep it from doing so. Of course, banning this software will work only within US borders. Subjugated nations like Australia (I am not trolling; I am only saying this because of the DMCA-ish provisions imposed on Australia as part of recent trade agreements) may follow suit, but I doubt the whole world will...
The pride of UnitedStatesian citizens about their country being the "Land of the Free" may start to cause problems for the legislators in the pockets of organizations like the MPAA and RIAA as people start to notice they have less freedoms than people in other countries. Well, I can hope, right?

--Mark

Re:Don't jump up and down yet...

[mojotooth]

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.

I suspect you left out a phrase there. Either that or you fell into the same trap as MGM did. The phrase "MP3 trading" does not imply infringing uses. Mr. Von Lohmann specifically cites several instances of mp3s traded on Grokster with proper permission of the copyright holders.

Bingo. Instant substantial non-infringing use.

Re:Don't jump up and down yet...

[UnknowingFool]

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.

I don't know where it says that in the decision. The actual standard is based on the Betamax decision. A technology must be "capable of substantial" or have "commercially significant noninfringing uses." Since Napster only handled MP3s, this impaired its noninfringing uses argument. Groksters and other P2P software do not share songs per se. They share files. It allows users to filter on videos and audio files. This is a slight distinction but it is enough. The Court of Appeals noted Grokster's use in Project Gutenberg to distribute public domain documents and how Wilco used it to distribute an unreleased album.

Only Matter of Time

[NoSuchGuy]

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!

Re:Only Matter of Time

[Anonymous Coward]

- WMD (This time for real)

Warez of Mass Distribution? :)

Re:Only Matter of Time

[mehaiku]

You forgot all of that filthy smut exchanged freely with no corporate oversite! Won't someone PLEASE think of the children!

Re:Only Matter of Time

[zogger]

one of the best acronyms evah score +1 insightfully funny

Uh oh!

[mehaiku]

I, for one, welcome our new copyright infringing, ip thieving, file-sharing, socialist, everyone-share-and-share alike overlords. I guess the RIAA bribe, I mean campaign contribution, didn't make it through on time.

Re:Uh oh!

[Phroggy]

I, for one, welcome our new copyright infringing, ip thieving, file-sharing, socialist, everyone-share-and-share alike overlords. I guess the RIAA bribe, I mean campaign contribution, didn't make it through on time.

This is precisely why judges aren't elected.

Re:Uh oh!

[adzoox]

I definitely think they should be and that there should be term limits of say 10 years. This way you would get 3 presidential terms.

Judges have become "in control" in this country - changing the law and bastardizing it's interpretations. The majority also are behind the times and understand very little about modern era politics/technology/social issues.

Re:Uh oh!

[Phroggy]

I definitely think they should be and that there should be term limits of say 10 years. This way you would get 3 presidential terms.

If judges were elected, they would run for office, and be susceptible to corporate bribery, just like the Legislature is now.

Judges have become "in control" in this country - changing the law and bastardizing it's interpretations. The majority also are behind the times and understand very little about modern era politics/technology/social issues.

I don't think they're "in control" any more than they're supposed to be. The Executive, Legislative and Judicial branches are supposed to be roughly equal. If a judge misinterprets a law, Congress can clarify the law, the Attorney General can order various agencies not to arrest or prosecute criminals under the misinterpreted law, and the President can pardon those wrongfully convicted.

I'd rather have judges be "behind the times" and apply old laws to new situations, than have them think things are somehow fundamentally different when you add the phrase "on the Internet" to the end of something, or react to the ever-fluctuating will of the uninformed American public while campaigning for reelection. It's not the court system's job to change laws to suit changing times, but to interpret the intentions of the lawmakers. If they're not doing it correctly, the solution is not to change how the Judicial branch operates, but to appoint new judges who will perform their duties more responsibly.

You would have been hip to this hours ago...

[Engineer-Poet]

... if you read The Volokh Conspiracy.

the appeals court clearly "got it"

[The_Bagman]

as Felten and others noted on their blogs, the money quote is:

As to the question at hand, the district court's grant of partial summary judgment to the Software Distributors is clearly dictated by applicable precedent. The Copyright Owners urge a re-examination of the law in the light of what they believe to be proper public policy, expanding exponentially the reach of the doctrines of contributory and vicarious copyright infringement. Not only would such a renovation conflict with binding precedent, it would be unwise. Doubtless, taking that step would satisfy the Copyright Owners' immediate economic aims. However, it would also alter general copyright law in profound ways with unknown ultimate consequences outside the present context.

Further, as we have observed, we live in a quicksilver technological environment with courts ill-suited to fix the flow of internet innovation. AT&T Corp. v. City of Portland, 216 F.3d 871, 876 (9th Cir. 1999). The introduction of new technology is always disruptive to old markets, and particularly to those copyright owners whose works are sold through wellestablished distribution mechanisms. Yet, history has shown that time and market forces often provide equilibrium in balancing interests, whether the new technology be a player piano, a copier, a tape recorder, a video recorder, a personal computer, a karaoke machine, or an MP3 player. Thus, it is prudent for courts to exercise caution before restructuring liability theories for the purpose of addressing specific market abuses, despite their apparent present magnitude.

Indeed, the Supreme Court has admonished us to leave such matters to Congress. In Sony-Betamax, the Court spoke quite clearly about the role of Congress in applying copyright law to new technologies. As the Supreme Court stated in that case, "The direction of Art. I is that Congress shall have the power to promote the progress of science and the useful arts. When, as here, the Constitution is permissive, the sign of how far Congress has chosen to go can come only from Congress." 464 U.S. at 456 (quoting Deepsouth Packing Co. v. Laitram Corp., 406 U.S. 518, 530 (1972)).

re:

[unformed]

It's April 1st dude.

Wait, no it's no. WTF? Crap, it's the end of the world, run for your lives!

No Context?

[ryth]

While I wish I could get excited about this decision, I really can't because this post has absolutely NO context, and neither do any of the links?

I live outside of the USA and haven't been following this case so I have idea what i'm being implored to be happy about. I think the moderators need to be more stringent ensuring posts make sense.

For all I know this ruling could mean CowboyNeal got his zoning permit for a new Hot Dog stand!

Re:No Context?

[tokered]

Grokster and Morpheus are p2p file trading networks. There has been ongoing litigation (initiated by the record industry) that basically claims these services and others like them are responsible for the decline in record sales.

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!

Re:No Context?

[hibiki_r]

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

Re:No Context?

[Friggo]

Read the Artikle? (In this case, read the PDF)

Re:No Context?

[ryth]

My point was that I shouldn't have to read an 18 page court ruling to decide if I am interested in the story. The story should be summarised in the post on the mainpage, if I am then interested in the subject matter I can read the sub-articles.

Don't you agree?

Re:No Context?

[studerby]

The summary is there: Grokster, et al won at the 9th Circuit, based on the application of the Betamax case.

There really isn't a better summary than that, without supplying several hundred words of background information, which are in that 18-page court ruling.

Damned activist judges...

[aborchers]

Trying to change the definition of copyright!

Re:Good!

[Phoenix-IT]

Actually, maybe I just assumed the masses to be a little shaper than they actually are... I'll post a lengthly laymen's version next time.

Straight out of Larry Lessig's Book

[gvc]

It sounds like the judge read and took to heart Larry Lessig's book, Free Culture. A free download and a must-read!

Some verbiage I didn't expect to see:

[eidechse]

"From the advent of the player piano, every new means of reproducing sound has struck a dissonant chord with musical copyright owners, often resulting in federal litigation."

Get down with the catchy metaphor...I like it.

Is this normal style in opinions or is this rare?

Re:Some verbiage I didn't expect to see:

[Anonymous Coward]

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?

Re:Some verbiage I didn't expect to see:

[theoddball]

Well, at least in Detroit, there seems to be a sense of humor (or at least, wit.)

A year or two back Marshall Mathers (aka recording artist Eminem) was sued by a childhood bully for defamation. The judge delivered a standard legalese ruling, and also, a rap of the ruling.

I shit you not.

Further case details here.

Re:Some verbiage I didn't expect to see:

[dameron]

Actually "struck a dissonant chord" is a cliche but happens to be used in a fitting context here. It's a gimme and it would likely make me cringe if I'd written it, but for legalese it's top notch work.

-dameron

Re:Some verbiage I didn't expect to see:

[Ibanez]

Just reading the larger quote that you took that sentence from that was posted a few posts up really impressed me. Whoever actually wrote it is quite the writer. I would never have expected something like that from a judge...

Blake

Re:Some verbiage I didn't expect to see:

[EmagGeek]

That's called a PUN, not a metaphor. A really bad one at that... :/

Re:Some verbiage I didn't expect to see:

[Jason Earl]

Holy smoke! That was the coolest thing I have ever read.

Re:Some verbiage I didn't expect to see:

[1ucius]

One of the more famous one is: http://tarlton.law.utexas.edu/lpop/etext/kozinski. htm The judge supposedly worked in 200+ movie titles.

The '+1' is important...

[Chordonblue]

...because it leaves you with the illusion that copyrights are limited (as prescribed in the constitution)...

The catch

[russeljns]

is that Congress can and probably will enact legislation which invalidates this. Open Secrets has a good listing of campaign contributions - take a look, we're screwed whether it's Democrats or Republicans in office. The entertainment industry expects something in return for their investments, and if history is any indicator, they will get it.

Could mean trouble from Congress... but maybe not!

[g_adams27]

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...

... but on the other hand, consumers aren't totally friendless in Congress. Richard Boucher (liberal Democrat) has consistently stood on the side of consumers and is pushing his anti-DMCA bill (the Digital Media Consumer's Rights Act (DMCR)). And Joe Barton (conservative Republican) is the head of the powerful House Energy and Commerce committee. He has publically expressed his opposition to further DMCA/INDUCE-style bills. And since the DMCR is going through his committee, his opinion will count for a lot in this fight.

Expositors actually define

[Safety Cap]

That is the point of the courts: they rule upon the law, defining, shaping, and setting the applicability

Re:Conservatives and the 9th Circuit...nope....

[AetherBurner]

I do not think that this is an issue of conservatism but one of realism. The decision enforces the idea that it is not the software that causes the infringement but the user of the software creates the infringement. I have to say that with the 9th Circuit of Appeals, the vast majority of opinions that it pens are whacked out but sometime they have to get it right once and this must have been that case for them to get it right.

Save the Children!

[cuberat]

You forgot the mandatory save-the-children alarmism:

- 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.

That's a catch?

[Short Circuit]

I think it's a good idea. Just so long as the end-user really was acting as a source for the material, and not as a mere routing point for the searches and requests. (The opinion has a fairly decent simple explanation of how the systems in question work along those lines.)

Is leaving a free-to-use phone outside your house "aiding and abetting?"

Just "internet" now.

[melikamp]

Check out "the internet", in lower case :)

On a side note...

[Dodger73]

The one time I thought I'd try it and installed Grokster, I ended up with a total of about 15 different spy- and adware programs and, according to my virus scanner, three different trojan horse downloaders. I sure as hell ain't ever touching that one again.

One should also add that

[Solandri]

Contrary to Universal's claim in that case that piracy due to VCRs would destroy the industry, videotape (and now DVD) sales and rentals have grown to where the movie companies make as much money off them as they do from theater releases.

Legal writing style (interesting tidbit)

[iamlucky13]

I have to admit, that article was actually passable, once you got past the "the plaintiffs are...............the defendents are........" part, the initial statement wasn't too hard to read. It even opened with this little gem of an anecdote(pg 9): "From the advent of the player piano, every new means of reproducing sound has struck a dissonant chord with musical copywrite owners, often resulting in federal litigation."

Better anecdote: If grokster causes people to download, and guns kill people, then spoons cause Americans to be fat.

Re:Legal writing style (interesting tidbit)

[hambonewilkins]

Huh.

Grokster [verb]causes[verb] people to download
Guns [verb]kill[verb] people
Spoons [verb]cause[verb] Americans to be fat.

Why did you change the verb? Let's take a look at it. Does Grokster cause people to download? No. Is it a means for people to download? Yes. Is downloading bad? No. Do spoons cause people to eat? No. Are they a means for people to eat? Yes. Is eating bad? No.

Now to the meat. Do guns cause people to kill? You'd most likely say no. Are they a means for people to kill? Yes. Is killing bad? Yes.

Re:Legal writing style (interesting tidbit)

[iamlucky13]

That is honestly the first good answer I've heard to the retort "if guns kill people, spoons cause Americans to be fat." I meant it to be mostly a slightly humerous ending to, rather than the "meat" of my comment, but you're right, I will contend that guns don't kill people. When somebody dies from by the gun, the problem lies with the person who pulls the trigger. There's definitely too much to discuss on this topic in a Grokster thread, so we'll have to wait another day to have our say. Too bad I don't have any mod points to give you an insightful rating.

Don't you think its time to get the DMCA repealed?

[MichaelCrawford]

While the US Constitution allows Congress to enact copyright laws, it doesn't actually require it to do so. Not just the DMCA, but copyright itself could be repealed tomorrow if we could get the votes in Congress to do so.

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.

Now go donate! Most of you haven't...

[geekotourist]

For all the amazing things they do and things they've done they are a small non-profit. Only a small fraction of Slashdot readers are EFF members because if 1/10th of us joined then it should have 80,000 members. It doesn't. That's a lot of free riders, or a lot of people who think that none of these issues will ever affect them.

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!

Musicians - notice the enabled business model

[Tired and Emotional]

While as a musician myself I hate to see musicians getting ripped off, in reality, the software in question only makes simpler something that can be done with a fair amount of ease without the software (think ftp and a bulletin board) so if the decision had gone the other way it would have been a legal recognition of luddism.

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?

Non-Commercial, Open Source, Legal Peer To Peer

[jbash]

Thought I would plug these guys. http://furthurnet.org/ Great place, especially if you're into jambands-- but it's all live music from bands with taper-friendly policies. They're very anal about making sure no copyright violating material goes out on the network.

Re:Now go donate! Most of you haven't...

[Anonymous Coward]

I'm going to side with the downloaders on this one and let the other guy pay. I mean, those folks at the EFF should be doing what they're doing because they love to, right? Otherwise, they're sellouts. And anyway, they should make their money by performing live.

Fisher's Deduction

[Coryoth]

Because you, being a liberal, like the decision, you automatically assume that conservatives will not. However while some issues draw lines strongly along partisan lines (abortion, death penalty, religious freedom, etc.), others, like copyright law or space exploration have no particular "liberal" or "conservative" stance.

"The more issues a person tries to crudely shoehorn down into an artifical liberal/conservative dichotomy, the more certain you can be that the person is an American."
--Fisher's Deduction

It's not that all Americans have a need to paint everything into some arbitrary left/right liberal/conservative Democrat/Republican dichotomy - it's just that the people who most often feel the need to make any issue into a "you're with us, or you're with them!" split, classifying whatever opinion is against theirs on a given issue as being the [Liberal/Conservative] stand on that issue, are almost always American. Perhaps it is the overly strong 2 party system in America. It's hard to say. But certainly it is remarkably common for Americans to try and dissect an issue into some arbitrary labelled Left/Right split.

Jedidiah.

it only gets better...

[Rimbo]

...when you read what's in there:

The Copyright Owners urge a re-examination of the law in the light of what they believe to be proper public policy, expanding exponentially the reach of the doctrines of contributory and vicarious copyright infringement. Not only would such a renovation conflict with binding precedent, it would be unwise. Doubtless, taking that step would satisfy the Copyright Owners' immediate economic aims. However, it would also alter general copyright law in profound ways with unknown ultimate consequences outside the present context.

Further, as we have observed, we live in a quicksilver technological environment with courts ill-suited to fix the flow of internet innovation. AT&T Corp. v. City of Portland, 216 F.3d 871, 876 (9th Cir. 1999). The introduction of new technology is always disruptive to old markets, and particularly to those copyright owners whose works are sold through wellestablished distribution mechanisms.

It's exactly what artists and the EFF have been saying all along.

You'd be surprised...

[raehl]

But court decisions are generally very easy to read, I think mainly because judges don't have any financial incentive to obfuscate. They write what the ruling is in nice plain english.

Contrast with lawyers paid by the hour, and supposedly paid to do something the client can't do on their own. There you have an incentive to write in a manner beyond the comprehension of your average person. "What? You can't understand this? That's why you need to hire me."

Personal comment is also fairly common in judicial rulings, more so the higher up the chain you go, and a sense of humor is certainly not lost upon jurists. If you've ever had the opportunity to work in a "very serious environment" (e.g. surgical/emergency room, in a combat zone, air traffic control, mission critical system support, etc.) you'll find that the people who have worked there for a while don't behave very "seriously". They can't, because if they did so full time they'd go nuts. If you're never been to a Supreme Court hearing, you should try one - you'd be surprised how much ribbing the Justices do of the lawyers and each other along with the liberal application of witty sarcasm, even from the conservative members of the bench, despite the often quite serious cases being presented.

Re:You'd be surprised...

[nuonguy]

Dude, you don't even have to go the supreme court. Just go to your local traffic court if you get a speeding ticket, or the like. I did. It's painful to watch a segment of society that is uneducated and helpless deal with the very real and cold reality that is a court room. It's also hysterical to listen to a generous and light hearted commissioner/judge issue instructions and inject humour into the proceedings. I couldn't do it justice if I tried to tell it.

In case you care, the officer withdrew the charges and so made my day, and maybe that's why I recall the experience so positively. And maybe that's also why my faith in the system received a welcome boost.

If only...

[Madcapjack]

If only we could peer to peer money. Now that would be a new economic system!

Re:If only...

[BCW2]

We almost can. The down side is It requires a third party and I just don't trust PayPal that much.

Re:Now go donate! Most of you haven't...

[pjt33]

How many slashdotters are in the US? A lot of us aren't directly affected by US law, and while it can be argued that we have an interest in ensuring that it stays relatively sane, we've got a bigger interest in our own countries' laws.

This will be the death of the movie industry...

[Anonymous Coward]

Just like Democrat Jack Valenti said.

Oh yeah, Jack Valenti was a life-long Democrat, aide to LBJ and all.

Just like the President who signed the DMCA was a Democrat.

Go figure. (that's sarcasm for the intellectually-impaired)

Re:This will be the death of the movie industry...

[valkraider]

But the Congress the finalized and passed the DMCA was Republican....

DMCA: Sponsored by Republican, Howard Coble, co-sponsored by Republicans Sonny & Mary Bono, Henry Hyde, Bill McCollum, Bill Paxon, Charles (Chip) Pickering; and Democrats Howard Berman, John Conyers, Barney Frank. (7 Republicans and 3 Democrats).

The sponsor, Republican Howard Coble's #1 supporting industry is TV/Movies/Music, having given him large chunks of money over the years leading up to the DMCA.

But thanks for trying to slam Clinton and blame him for things - we all know "It's Clinton's Fault!"

Implications for broadband providers&surveilla

[D4C5CE]

This should also have strong repercussions on the current policies and Terms&Conditions in many broadband plans where providers assert a "right to snoop" and monitor (or even just meter) their customers' connections and usage patterns.

As this decision unequivocally spells out, morbid curiosity & control frenzy can only be considered legally and economically suicidal, as they are a surefire recipe for providers to expose themselves to claims for respondeat superior vicarious liability.

So all providers should stop wasting resources on keeping under surveillance and curtailing P2P, but rather just offer pure and simple unmetered flatrate plans instead - where they can forget about Intellectual Property issues, and put their "network security" staff to better use for finally tracking down and terminating all spammers...

The big question...

[laigle]

So, how far will Congress go, using this as an excuse to void fair use? I'm guessing they'll "Stamp out file-sharing thieves" by declaring all IP to be bought on a license basis, with the copyright owner able to change the license at any time. But the RIAA is pretty creative with the laws they write for Mr. Hatch, so anyone else have any thoughts on what the next step is to further the cause of plutocracy?

Text Version Appears at the following address

[rfc1394]

For those that don't want to have to download the decision and use Acrobat, you can view it as ascii text here.

Re:Good! Brought Back ON topic

[ifwm]

"Good lord, some people have no sense of humor"

The first step to recovery is admitting you have a problem.

Re:Now go donate! Most of you haven't...

[radish]

I'd second that. The hat is cool :)

Why you should worry about US laws

[MichaelCrawford]

You should take the US-Australia free trade agreement as an example of why you should worry about US laws.

The agreement specified that the two countries would harmonize their laws regarding such things as copyright. Far be it from the US to adopt any of Australia's laws, instead Australia is going to enact its own DMCA.

Joining the EFF, even if you are a citizen of a different country than the US, will help keep your country from harmonizing their laws to be in accords with US ones.

Re:Why you should worry about US laws

[don.g]

No. Lobbying your elected representatives not to go into such trade agreements is the correct response. Funding a US group so that they can lobby for laws in the US to be changed before they trickle down through trade agreements and the like to your own country is a bit too many levels of indirection for me.

You don't have to join to donate

[Gregoyle]

Many employers (the US Army being one of them) offer books of charities that you can donate to and have automatically deducted from your paycheck prior to taxes being calculated.

That's how I donate. I don't think I'm counted as a "member", but titles like that never really mattered much to me, or the hats or stickers.

Re:You don't have to join to donate

[David Price]

Unfortunately, EFF has decided it must withdraw from the Combined Federal Campaign, which, I believe, is the program you mention.

The CFC is now requiring organizations that receive funds to check the names of their employees against terrorism "watch lists" in order to participate. It's not clear what organizations have to do if they discover they employ someone whose name appears on the list (such as anyone named "Julio Ramirez.") The privacy implications of such a policy should be apparent.

The EFF, ACLU, and several other organizations have therefore withdrawn from the program. Please note that you can still donate and deduct your donation from your taxes, you just won't be able to do it through the convenience of a federal employee paycheck deduction.

Speaking as an EFF volunteer, I'd really appreciate it if you'd continue to donate, despite the extra burden on your time.

Re:Don't you think its time to get the DMCA repeal

[DJ Wipeout]

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.

Wait for them to grow up.

9th Circuit doesn't hold much water though

[Bill_Royle]

While I'm happy to see the decision from the 9th Circuit, it's WAY too early to pop the champagne.

Don't forget the the 9th Circuit Court of Appeals has their decisions overturned by the Supreme Court constantly. The pledge of allegiance case is a recent example.

I doubt we'll even get to the INDUCE act before this is nullified.

Score one for the little guy...

[mhollis]

Orrin Hatch wants to destroy your computer in order to please his friends (read campaign contributors) in the recording and movie industry. This particular reactionary thought it might be a good idea for those who feel their copyright is being infringed by these decentralized perr-to-peer networks ought to be legally able to write virus code that will destroy users' computers.

On the other hand there's Elliot Spitzer, Attorney General of the State of New York who found that many artists and writers were not being paid royalties because record companies had failed to maintain contact with the performers and had stopped making required payments.

I have a very good friend who is a CPA and worked as an auditor for a large CPA firm here in NYC. One particularly famous rock band from Long Island (long since broken up) had a member not too long ago who ran into a rather obnoxious member of the press (read papparizzi) who shoved him, then sued him when he struck back (he only hit him because he was trying to recover hos balance, honest).

The band member contacted their lawyer, who he had not spoken to for years due to the band's breakup. The lawyer told him that it would cost $5,000 to represent him and when could he expect the check?

The former rocker's answer was, "But I'm broke!

The lawyer rummaged around a bit and pulled out a standard contract which has a paragraph indicating that the band may audit the record company's books at any time and that the expense must be borne by the recording company if the band felt that there was any malfeasance.

The lawyer then asked the band member when the last time he had received a royalty check was.

The band member recalled the last one came in (and was all-too quickly spent) seven years before.

The lawyer suggested that the band had a strong case for malfeasance, as he, himself had seen someone purchase a CD of the band's music himself within the last year. My friend (the CPA) was hired and they found that the company typically under-reported album (later CD) sales when the band was active by 20%. Additionally, the recording company was on the hook for seven years of pretty good sales of the CDs made by the band as well as one anthology that the record company had produced that the band didn't know about.

This gave the band enough cash to put a little away in investments and also to initiate a comeback tour that was quite successful in both raising quick cash from venues as well as increasing their CD sales.

The RIAA says that the sales of CDs are dropping and that it's caused by peer networks. The movie industry said that fewer people were going to the movies and were purchasing videos and laserdiscs (later DVDs) because of home copying and later peer networks. I just cannot believe these theves.

Could the real reason why they say their sales are down be because they are underreporting sales in order to screw artists? Or is it that the current distribution model prevents anything compelling to the audience from ever being released? I wonder as I watch all of the caterwauling about copyright. Could it be that the only revenue stream they can come up with is through litigation instead of developing and releasing compelling content?

Re:WOW - Clarification

[DarthWiggle]

Repeating the old "9th Circuit is the most-reversed appeals court" argument?

Well, in numerical terms, that's true. But that's a bit like saying 1,000 teenagers smoke 10 times as many cigarettes as 100 teenagers. The 9th Circuit is by far the largest circuit, covering a massive territory, population, and range of issues. It's long overdue for a split, much like the Fifth Circuit was split into the Fifth and the Eleventh Circuits in the 80s.

Anyway, as this article from the Arizona Republic helpfully points out, the rate of reversal per decision reviewed for the 9th Circuit is about the same as that of the Republican-dominated 7th Circuit. Confusing relative rate of reversal with the absolute count of reversals is a smoke-and-mirrors tactic that doesn't do anything but confuse the reader to believe a non-supportable position.

Republicans are so fond of demonizing the 9th Circuit that it's almost laughable. The number of genuinely new issues that arise in the 9th Circuit is shocking, with strong bases of technology, social change, entertainment and copyright, and so forth, in addition to the usual business of criminal appeals and reviewable state action. Without a doubt, the 9th is a left-leaning court, but the 5th and the 4th Circuits are just as far to the right, and their right-wing wackiness is not blindly upheld by the Supreme Court.

Anyway, without meaning offense, Tongo, this is a tired old line that has little basis in reality and is just a crutch by the right (and talk show hosts) to perpetuate a demonized view of the Left. Now, if the Right can demonize the Left on issues, go ahead, but the Right shouldn't rely on baseless houses of cards to house their anger.

Now, back to news for nerds.

Wait a second though.

[/dev/trash]

Isn't the 9th Circuit the most overturned Appeals court?

Re:Wait a second though.

[nberardi]

Yes there is a reason they call it the 9th Circus, because it's disissions are usually based more on feelings than law.

actually yes... I do...

[darekana]

Actually it's quite simple...

1. Rename your music file: 50_Cent_Shania_Twain_Chicks_Avril_Lavigne_Britney_ Spears_wedding_sex_video.mp3
   
2. Distribute on file sharing networks
   
3. ???
4. Profit

(No more of these lists. I promise.)

Here's Why Not, and Here's Why.

[geekotourist]

On the why not side, there's that the idiotic laws of the US can mean growth in non-US tech firms... As Charlie Stross (of recent Singularity and SF article fame wrote back in April 02:

"I'd like to note my complete support for the CBDTPA.

I understand that virtually nobody else has said anything positive about this Act. That's because virtually everybody who has contacted you to discuss the Act so far is American. I'm not American, and I'd like to congratulate you on this most excellent piece of legislation, which will do more for the European computer, software, and music industries than any amount of pork our own legislators could have given us.

This Act is wonderful. At a stroke, you're crippling your software industry, destroying your nascent open source infrastructure, putting all your unsigned bands and hopeful novelists back behind the counter at McDonald's, and giving your computer and electronics vendors a huge ball and chain to lug around.

You'll also have given a big hand to Hollywood and the music industry -- a $35Bn turnover sector -- and successfully trashed the electronics, software and hardware industries -- upstarts whose $600Bn turnover is of no account. In so doing, you will have helped advance the USA to the status Imperial Britain aspired to in 1902 -- that of has-been former superpower.

If you pass this act, I will be sure to express my gratitude for the resulting pay rises and improved employment opportunities -- in Scotland and the rest of the EU, and indeed the developed world -- in writing. Thank you, and good luck."

And you should donate to your own countries' groups: Electronic Frontiers Australia / Canada / Finland (all independent organizations, not subsets of the EFF). There are many important online liberties organizations throughout the world.

On the yes, donate side... The US government's policies on copyrights / DRM / protecting Hollywood do affect the rest of the world. Our congress is the elephant in the electronics shop. The EFF is trying to keep the elephant tranquilized-- i.e. minimize the damage it can cause. The EFF is often a first responder-- it tries to catch weird new tech policies before they grow out of control and become laws in the US (and then the rest of the world). So donate 97% of your 'Rights x Technologies' monies to your local groups. But then also donate 3% to the EFF to prevent the bad US policies from being yet another worry for your local group. Insurance.

Re:WOW - Clarification

[Tongo]

Dude, first have a drink. Relax. It's a fun quote. I seriously disagree with the fact that the make new law instead of interpreting current law. But hell that's just my point of view. Anyways, I'm off to have my drink :)

The Ninth Circuit, you say.

[Canthros]

Best wait for the decision on the appeal before breaking out the champagne, then.

As a frequent traffic court participant...

[raehl]

I can assure you that in the vast majority of cases, it's exceedingly dull.

Re:WOW - Clarification

[DarthWiggle]

It's a __FUN QUOTE__?!?! You newspeak DEMON! You MUST be one of those CONTENTED HOUNDS who accepts the MANDATE that thought is EVIL! That we must accept the SOUNDBITE!! You, sir, are a GOAT!

*snicker :)

You're right... taking life too seriously is doubleplusungood.

(damn shouting filter... this was almost entirely caps before, as a witty irony.. *sigh*)

Re:Now go donate! Most of you haven't...

[Alsee]

eiozh bhpaceog phshzt!

Sorry to be a spelling nazi, but that should be "ieozh bhpaceog phshzt!".

Remember the rule: i before e except after c or when sounded like a as in neighbor or weigh; and except seize and seizure and also leisure, weird, height, and either, forfeit, and neither.

Of course there are a few exceptions to that rule, but if you can remember that rule then you've got 80% of the cases covered and it's not hard to pick up the few dozen exeptions.

-

Re:WOW indeed

[Mycroft_VIII]

Not only comon sense, but I read the decision and while they didn't get all the technical aspect right (though they say it's an oversimplified explanation, and point to better ones), they actually seemed to 'get it' on how this stuff works at some level and ruled in a manner that shows it.
No bad analogies that miss the point, no complete confusion with other tech, just a clear explanation of why what the three pages of plaintifs say doesn't work under the law considering the technolodgy involved.
Now as far as a catch, they pretty much say congress can change or amend the law to somthing more *aa freindly.

Mycroft

misleading numbers

[Mycroft_VIII]

Activist is likely a matter of opinion.
Most overturned is b.s. The 9th's percentage of overturned cases is pretty close to the other circuit appellete courts. They just hear a LOT more cases than the others, so thier raw numbers are higher. Using raw numbers they're also the most upheld court.

Re:Don't you think its time to get the DMCA repeal

[ms1234]

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.

And how many of them cannot vote because they are too young?

More than I bargained for

[Dorsai65]

Hearing this, I went to download grokster and got a lot more than I bargained for: SIX spyware applications and the Backdoor.Agent.2 virus. What more could a mere mortal ask for?

Right to change EULA...

[SeanDuggan]

Except don't most major companies now include a clause where they say they have the right to change the contract at any time with the canges being binding? Technically, you did not agree with the changes, but you did agree with the initial condition of giving up your rights of re-negotiating the contract. *wrinkles nose* That said, I'm not sure if this type of clause has ever been challenged and if so, what the end conditions were, but I suspect that anything beyond a very minor change would not go through. ^_^ So changing your company's address does not require a re-review of contract, but adding a $250 user fee does.

Don't get too excited

[laika$chi]

The 9th circuit is often overturned at the Supreme Court (Yes, they handle more cases than any other circuit, and yes, normalized for that they still get overturned nearly the most frequently). That having been said, confirming a summary judgement at the district court, is certainly a good sign that the court system in this country, though slow, does eventually get it mostly right. Then Congress screws it all up.

w/ INDUCE Act, almost everyone can be sue.

[Freeman-Jo]

http://www.corante.com/copyfight/archives/004408.h tml#more
in section 2.g: "(1) In subsection (g), "intentionally induces" means intentionally aids, abets, induces, counsels, or procures, and intent may be shown by acts from which a reasonable person would find intent to induce infringement based upon all relevant information about such acts then reasonably available to the actor, including whether the activity relies on infringement for its commercial viability. "

So, bascially, harddrive, scanner, camera, camcorder, PVR, VCR, copier machine can be use for copyright infringment. For crying out louud, infact, even a pen and paper can be use for copyright infringment. What's next, all art classes cannot be taught in school, infact, you can't even study literature if you know how to write.

Re:w/ INDUCE Act, almost everyone can be sue.

[BalorTFL]

Ah... but just how many guys actually want to be Sue?

Family Hypocracy

[Hanzie]

Well, the family does appear to have it's problems.

The honorable Senator Orrin Hatch's son, Brent O. Hatch, is a lawyer for SCO. Read the service list at the bottom of this motion for preliminary summary judgment.

I suppose that it's remotely possible that the good senator actually thinks he's doing good, if he's had his head in the sand, but his son's actioins are flatly inexcusable. If Brent Hatch doesn't know enough of the law to realize he's the point man for an extortion ring of copyright thieves, well...

So to summarize: Daddy senator wants to blow up computers of copyright thieves. Son is working for copyright thieves who IBM says have stolen 750,000 plus lines of code.

Makes me sick.

Oh yeah, I'm from Utah.

hanzie.

wah wah wah

[jonskerr]

"I can live without free beer copies of the latest boy band, but I can't live without Free Software."

Why not? Ever tried it? You'd be amazed at the things you can get along without. Besides, it's all part of the same thing. When the corporations have too much power, they'll stamp out freedom of any kind, whether it's downloading their crap music or being forced to use their crap software because nothing else is available.

Good points but not quite accurate

[adzoox]

Those are some good points, but ...

Separation of Church and State has been GROSSLY misinterpreted by the modern judicial system at all levels.

Can you point to a modern case where the congress or even a state legislature has been successful in censuring a judge or reversing the decision?

Your point that if they were elected it would be unfair - well the currently are unelected politicians taking bribes and handing out decisions that do not mesh with the populous.

Re:Good points but not quite accurate

[Phroggy]

Can you point to a modern case where the congress or even a state legislature has been successful in censuring a judge or reversing the decision?

What about when the FTC announced they would be establishing a national Do Not Call list, the Supreme Court said the FTC didn't have the authority to do so. So Congress clarified the law, and the FTC went ahead. That's an example of the system working the way it's supposed to.