MGM v. Grokster Date Set

An anonymous reader writes "The Supreme Court has set March 29th as the date for oral arguments to begin in the Grokster trial. As we all know the final ruling will have ramifications on the tech world well beyond P2P. A decision is expected by end of July."

Comments

yeah, yeah; whoring~

[tektek]

Date Set for Morpheus/Grokster

By Jon Newton 1/20/05

March 29 is the date set for oral arguments in MGM v Grokster when the major movie studios and Big Music cartel will once again try to force a decision saying p2p companies can be held responsible if customers use their p2p software to infringe copyrights.

The entertainment industry has already lost once on this in District Court, and again at the Ninth Circuit Court of Appeals.

But Hollywood won't take an unequivocal court decision for an answer and is now trying to bludgeon the US the Supreme Court into reversing.

"The lower court rulings were based on the Supreme Court's landmark decision in the 1984 Sony Betamax case, which determined that Sony was not liable for copyright violations by users of the Betamax VCR," says the EFF (Electronic Frontier Foundation) which is representing Morpheus owner StreamCast Networks.

A final decision is expected by the end of July 2005.

Well...

[psi42]

Anyone want to place a bet? :)

Re:Well...

[Catbeller]

Yep. The rich people will win.

1984 Decision

[jeffkjo1]

While the original Betamax case was over 20 years ago now, there are three current justices on the Supreme Court who presided over the original case.
O'Connor and Stevens voted in favor of Sony
and Rehnquist voted against.

Source

It will be interesting to see how this case turns out.

Re:1984 Decision

[jeffkjo1]

Some additional information.
Justice Kennedy was sitting on the 9th Circuit appeals court in 1983-84, when this case was originally heard at the federal level. The 9th Circuit voted against Sony, although I have been unable to find how individual Judges voted in the case.

Re:1984 Decision

[trabisnikof]

It'll also be unlikely that Rehnquist will still be presiding then, his health is failing, he is under chemotherapy and radiation treatments. I doubt that the Justices will find the Betamax ruling precedent for a pro-Grokster ruling.

Re:1984 Decision

[jm92956n]

It'll also be unlikely that Rehnquist will still be presiding then

Rehnquist has made it clear that he will not actively participate in the court and he will abstain from every decision EXCEPT when the other justices reach a 4-4 tie; only then will he step in to cast the deciding vote.

Re:1984 Decision

[Zondar]

"I doubt that the Justices will find the Betamax ruling precedent for a pro-Grokster ruling."

How could they not? In each case, the offending person is using a piece of technology to distribute copyrighted materials to which they have no right to distribute.

1) Two VCRs sitting next to each other, one set to record and the other to play, connected via RF cables.

2) One VCR attached to a wireless RF video distribution device set to play, ten VCRs attached to RF receivers set to record.

3) One computer playing a song via it's audio out jack, one computer recording via the audio in jack.

4) One computer hosting an audio file via a network, 100,000 computers receiving that file.

In each case, the mechanism of distribution changes, but the core principle stays the same. The Betamax case found the creators of the distribution mechanism not liable for the unlawful use (copying copyrighted materials without permission) of it's users.

Of course, there are huge differences. The original case somewhat hinged on the right of Fair Use -- a right the **AA has been trying to destroy at every turn. They believe the only "fair" use is when you pay them for each playback of the content.

In addition, there was no such thing as the DMCA. We can only hope that if / when they try to bring up the DMCA as an argument, the court finally gets a whack at it and declares it unconstitutional (or at least inconsistent with pre-existing fair use right declarations).

Re:1984 Decision

[xanadu-xtroot.com]

I says right in the Wiki article mentioned above, had you actually read it:

1. The Supreme Court ruled 5-4 in favor of Sony, with Stevens, Burger, Brennan, O'Connor, and White in agreement, and Marshall, Powell, Rehnquist, and Blackmun dissenting. The court held, among other things, that "The sale of the VTR's [video tape recorders] to the general public does not constitute contributory infringement of respondents' copyrights."

Re:1984 Decision

[LittleBigLui]

Funny... when i read "in favor of Sony" up there i immediately interpreted it as "against VTRs".

The public perception of Sony (well, at least my perception of Sony) seems to have changed a bit over the last years.

Re:1984 Decision

[David Price]

The Ninth Circuit, like all the circuit courts of appeals, hears cases in three-judge panels. The panel in the Betamax case consisted of Judges Kilkenny and Canby, plus a district court judge named East who was sitting by designation (basically, district judges occasionally sit on appellate panels, and in this case, that happened.) That panel unanimously found Sony liable for distributing the VCR. (If you happen to have a law library nearby, the citation is 659 F.2d 963.)

The Ninth Circuit then denied en banc rehearing, meaning that it refused to rehear the case before a panel of all the circuit judges. The Supreme Court took the case and reversed the panel, 5-4.

Justice Kennedy was apparently never involved in the Betamax case at any level.

Re:1984 Decision

[ari_j]

As much as it would like to believe the contrary, the Court of Appeals for the Ninth Circuit, to which the parent referred, is not the United States Supreme Court. Had you actually read the comment to which you replied, you would know that.

Re:1984 Decision

[ari_j]

Justice Kennedy was apparently never involved in the Betamax case at any level.

I concur. ;) That's what I found, scanning said citation of the 9th's opinion.

Re:1984 Decision

[ari_j]

Just a note to those discussing this - the Betamax case was before Sony was seduced by the Dark Side, and the company was the "good guy" in that case. Is Sony any part of the RIAA or MPAA? Has this come full circle?

Re:1984 Decision

[stoborrobots]

This really came "full circle" a few years back in a bunch of lawsuits nicknamed "Sony vs Sony". See this cNet article for details.

(The gist of it: Sony Music, as a member of the RIAA was up against the Consumer Electronics Association, of which Sony Electronics is a member, as well as some companies which Sony is an investor...)

Re:1984 Decision

[Alsee]

Actually this case should be stronger than the original Betamax case. In Betamax the MPAA was fighting the very notion that timeshifting was fair use. In this case the RIAA has stipulated in court that a wide range of content and P2P use is indisputeable legitimate. Not merely fair use, but simply non-infringing.

-

Re:1984 Decision

[Catbeller]

So, if the court splis pro-biz vs. pro-consumer, he will step in. So, no changes. We be screwed.

Re:1984 Decision

[VoxCombo]

Actually, betamax was never in contention. The plaintiffs did, and still do accept the precedents set forth in that case (mainly, the "substantial non-infringing use" test).

Fair use was not in contention during this trial either.

Much more important was the Fonovisa case in which the precedent for vicarious infringement was set.

Re:1984 Decision

[dirk]

Well, the big difference I see is that there was no distribution in the Sony case. It allowed someone to make a copy, that's all. Grokster does not allow you to make a copy, it allows you to distribute copies to a theoretically unlimited amount of people. You're computer allows you to make a copy of a DVD (and I believe the jury is still out whether making a copy for yourself is legal). Grokster allows you to distribute that copy to other people.

Plus, even if the Sony case had covered distribution, the scale is different which makes the cases different. Making a degrading copy that can be given to one person is different than making a perfect copy that can be given to an unlimited amount of people. Scale does make a difference in the law, which is why stealing 5 dollars is a different crime than stealing 5 million dollars.

Re:1984 Decision

[Kjella]

Grokster does not allow you to make a copy, it allows you to distribute copies to a theoretically unlimited amount of people. You're computer allows you to make a copy of a DVD (and I believe the jury is still out whether making a copy for yourself is legal). Grokster allows you to distribute that copy to other people.

By that logic, a car allows you to distribute drugs to a theoretically unlimited amount of people. Quite frankly, they're going to have a helluva time outlawing P2P while not outlawing TCP/IP. The definitions I've seen cover everything we know to be Internet, and well - that's quite a bit of non-infringing use. Even the software designed to do P2P (and not merely capable) have considerable non-infringing use.

Re:1984 Decision

[optimus2861]

Grokster does not allow you to make a copy, it allows you to distribute copies to a theoretically unlimited amount of people.

So does FTP.

So does a web page.

So does NNTP.

So does a mailing list.

That Grokster et al make it easier than the other choices does not change the underlying legal principle (in my non-lawyer opinion). I could fire off an email with an MP3 of a copyrighted song attached to it to everyone in my address book. That's copyright infringement, no question. Why should the maker of my email program be in any way liable for that?

Re:1984 Decision

[ari_j]

When you sue yourself, do you need a four-faced lawyer?

Re:1984 Decision

[Anonymous Coward]

How could they not?

In each case, the mechanism of distribution changes, but the core principle stays the same.

You answered your own question. It actually doesn't matter if the principle remains the same, it's the scale that's important.

Do you believe that, based on the principle evinced in the 2nd Amendment of the United States Constitution, that American citizens should be able to own nuclear weapons? The principle would allow for it. But do you think the courts would rule that way? What is the defining principle behind the patent laws the US courts have upheld? How about the drug war? When the US Supreme Court upheld the federal government's legal authority to forbid distribution of medical marijuana by the Oakland Cannabis Buyers Cooperative, what principles were in effect then? For cryin out loud, US citizens can't even legally speak the word "Fire!" in a theater despite the principle of freedom of speech, yet you think that in this matter principle alone will carry the judgment?

The vast differences in ease of duplication, type of duplication and ease of distribution make this case completely different, in terms of scale, from the Betamax one. Ergo I wouldn't expect the same ruling, unless you're a naive fool.

Re:1984 Decision

[Anonymous Coward]

'The original case somewhat hinged on the right of Fair Use -- a right the **AA has been trying to destroy at every turn. They believe the only "fair" use is when you pay them for each playback of the content.'

Its not quite right to say it 'turned' on that. It depended on there being "substantial non-infringing use". Some of this was fair use, and some of this was authorization by copyright owners (the prime example was Mr Rogers) that viewers could time-shift tv programs.

So it 'depends on fair use' only to the extent that there is 'substantial non-infringing use'. The district court found about 10% of the use to be non-infringing. At least part of the question is if this is 'substantial'.

Others are arguing that the 'substantial non-infringing use' test doesn't save you if you have advertised or given tech support to people who you know are committing infringement, or if you advertise infringement. This could save Sony, save filesharing, but doom the bad that people. I think it would be a good solution.

Re:1984 Decision

[Bill_the_Engineer]

Unless your car can travel the globe instantaneously (or that matter traverse an ocean) while getting unlimited gas milage, than I can see your point. But sadly reality makes your point wrong.

I believe what you meant to say is:

That while it is a crime to transport illegal drugs and if caught stiff penalties will be given (including the loss of said vehicle), the vehicle manufacturer themselves are not held accountable for the actions of their consumers.

As for the comparison of TCP/IP to P2P, you can think of TCP and UDP as a vehicle and P2P as the courier service. P2P uses network protocols to ferry their packages around the internet. While the inventor of the vehicle is usually not held liable for any crimes committed with thier product, carrier services are not so lucky. If the carrier knows that their service is being used to commit crimes, they are held accountable.

This is where both your analogies work against you. P2P providers admit that their service is used to distribute pirated material (along with legitamate material), but they argue that they have no direct control of thier clients. By this admission they can be found liable.

Common carriers (in the physical world) go to great lengths to insure that they are not transporting illegal items. In the U.S. they cooperate with Customs, Immigrations, USDA Plant Quaratine, DEA (drug enforcement), ATF (Alcohol Tobacco and firearms), and local law officials (mostly weight restrictions for cargo carried on public highways). When an occasional illegal item makes it way to its destination via a common carrier, the fact that the common carrier has a history of cooperation with law enforcement is used to prove that the courier was not actively involved in the transaction.

On the otherhand, some smaller carriers who make it a habit to avoid detection by law officials by taking alternate routes, by avoiding inspection points, by knowingly carrying illegal cargo, and by having a customer base made up of mostly criminals are not so lucky...

I am in agreement with the parent of your post. The VCR is not a device capable of distribution therefore its manufacture can not be held liable for the distribution of pirated materials. The premise is that Sony did not engineer the VCR for mass distribution. P2P on the otherhand is designed for distribution, and so is not covered by the Sony Betamax decision.

Service providers like the old Napster, Kazaa, Websites hosting Torrent Links, and Grokster should be held liable for the material that they actively help distribute especially if they knowingly cater to a consumer base that distribute copyrighted material.

Only if these services actively discourage piracy by deleting known material from their directory and blocking (and reporting) customers that posted the material (DISCLAIMERS DON'T COUNT), should these services be found non-liable.

Tools like bittorrent should not be held liable, since even though it was engineered for the distribution of information. Its creator has absolutely no control on what is transfered.

I know my opinion is not popular, but hey get over it.

Re:1984 Decision

[HTH NE1]

Grokster does not allow you to make a copy, it allows you to distribute copies to a theoretically unlimited amount of people.

Technically, it does not distribute to others. It merely offers to others the ability to pull the data themselves.

It's the difference between passing out CDs on the street corner to anyone who passes by and having a kiosk that will let people burn a copy of the CD themselves by inserting a blank. The device is a distribution device. It can be used to distribute the owner's original work, or it could be used to distribute the works of others.

It is still able to distribute to an unlimited number of people. Unless you're going to say that the rate at which it is capable of distributing also matters. That would be like claiming someone having 5 52x CD burners is the same thing as having 260 1x burners.

When does the scale change something from legal to illegal anyway? Stealing 5 dollars and stealing 5 million dollars are both crimes. When does non-liability for selling a device with non-infringing uses on the small scale become liabilty for selling a more capable device with non-infringing uses on the large scale?

Re:1984 Decision

[kesuki]

Either way we can call it a 1984 decision...
if they vote pro grockster it's a 1984 betamax decision style 1984, and if they vote against, it's a George Orwell style 1984 decision...
"BIG BROTHER IS WATCHING YOU..."

Re:1984 Decision

[Macadamizer]

"When does the scale change something from legal to illegal anyway? Stealing 5 dollars and stealing 5 million dollars are both crimes. When does non-liability for selling a device with non-infringing uses on the small scale become liabilty for selling a more capable device with non-infringing uses on the large scale?"

The law isn't binary like this -- if you steal $5, it's petty theft, you won't get nay jail time for that. If you steal $5e6, well, then that's grand theft, and it's a felony, and you'll likely do time (you'll do life if you have 2 other previous "strikes" in CA). Another example: killing another person is illegal. You may have a defense -- self defense, for example -- or they may charge the crime different depending on what exactly you did and what your frame of mind was -- involuntary manslaughter if you did something careless, up to murder one for a premeditated act.

Even in copyright law, the criminal penalties don't kick in until you've got a) the right "intent" (willfulness), b) commercial gain, and c) the commercial gain has to be over a certain threshold. So, if you don't meet those factors, you can't be charged with criminal infringement.

Even "fair use" is a sliding scale -- if you borrow just a teeny bit, even if you use it for commercial gain it might be fair use. If you borrow a lot (or all of it), even if it is for an educational use, it might not be a fair use.

These sorts of sliding scales and cutoffs are quite common in the law, and there is no reason that the courts could not potentially say, for example, if you can make one copy at a time (like a VCR) its fair use, and if you make more than one copy at a time, its not a fair use. Or, in this case, if a VCR has infringing and noninfringing uses, but the noninfringing uses make up 75% of the uses that's cool, but for Grokster, even though it has way MORE noninfringing uses than infringing uses, but infringing uses make up 95% of the actual uses, then it is not cool.

In fact, that's probably how this will all shake out. I predict that in the future, you'll not only have to show substantial non-infringing uses (like in the Betamax case), you'll also have to show that the non-infringing uses are actually the PRIMARY use of the product -- so Grokster or Bittorrent or whoever would not only have to show noninfringing uses, but that the noninfringing users were in the majority...

That's my prediction, at least...

Re:1984 Decision

[gstoddart]

Well, the big difference I see is that there was no distribution in the Sony case. It allowed someone to make a copy, that's all. Grokster does not allow you to make a copy, it allows you to distribute copies to a theoretically unlimited amount of people.

With each individual ending up with a copy. Hence, it facilitates making a copy.

Distributing the same copy multiple times means the same as making a copy since you end up with a different copy than the one offered up. It's not a single copy that gets passed around, you get a whole new copy.

The point of the ruling was that just because the device can be used to make copies, the creator of that device isn't at fault if you do so illegally.

If the Betamax decision gets reversed, then one might be able to start suing libraries who have photocopiers, or possibly even sue the makers of photocopiers as having caused copyright infringement.

Not good.

Re:1984 Decision

[Anonymous Coward]

Non-infringing uses are not the PRIMARY use of a VCR either. Most people use a VCR not for time shifting but to create their own video library of recorded shows. By your logic VCRs should be illegal because legal uses like time shifting are not the PRIMARY use of VCRs.

Re:1984 Decision

[Anonymous Coward]

Oh yeah?!

Well F*CK Rehnquist!

Re:1984 Decision

[Macadamizer]

"Most people use a VCR not for time shifting but to create their own video library of recorded shows."

But that IS time shifting, at least that's what the court in Sony said, and therefore a fair use. Recording something now to watch later is exactly what time shifting is. The problem with the P2P guys is not "time shifting" but distribution.

When will they give up ?

[Gopal.V]

>The entertainment industry has already lost once on this in District Court, and again at the Ninth Circuit Court of Appeals.

So this is the third attempt and one at the supreme court too.. When will these people give up ?. Of course the Betamax case clearly puts the distributors of the technology (which has clearly legal uses) out of the danger area.

They already have a date for the decision (July 2005), now if only they'd tell what decision they paid for :)

Re:When will they give up ?

[Rosyna]

Uhm.. They'll give up based on what the Supreme Court says. There is no higher court in the US. And anything they say becomes law. They are the ones that keep US Citizen's rights and the ones that revoke them.

Re:When will they give up ?

[westlake]

Of course the Betamax case clearly puts the distributors of the technology (which has clearly legal uses) out of the danger area.

Betamax was a pure hardware device, a simple video recorder. It was not a program library, a catalog, or a distribution system. Dangerous to assume that the court will regard the Betamax decision as controlling.

Re:When will they give up ?

[rilian4]

...They'll give up based on what the Supreme Court says. There is no higher court in the US. And anything they say becomes law....

Does anyone have a constitutional problem with this statement? I for one am forced to agree with the poster that in fact the Supreme Court's decisions have, in effect (if not in practice also) basically made laws. However, the Constitution clearly grants the power to make laws to congress.

I am disturbed by the idea that judges base their decisions in a case, not on laws themselves but on other judges decisions! This then leads other judges to rule on a case stretching the meaning of the original law. This then repeats until the original law itself is irrelevant and only interpretations of that law or "precedent" is meaningful to any court. Something is not "The law of the Land" simply because of a court ruling. I feel that the lines of separation of powers between the courts and congress have been eroded and that the courts in today's United States have the real power in government. The process of removing a corrupt judge is so difficult at most levels that it rarely happens and many judges that are elected run w/ no opposition so they cannot be removed by vote. Yet the court has the power to negate anything congress does on a whim and the courts use decisions to basically create laws or force a congress to do so. This to me is a complete overstepping of their original charter in the constitution.

Re:When will they give up ?

[Alsee]

The Betamax ruling was that the maker of a product - and the court repeatedly used the word product - which was "capable of substantial noninfringing uses" was not liable for any infringment which may or may not be commited by people who use that product.

I'd be absolutely facinated to hear any logic how and why a different liability standard would exist between "software products" and "hardware products".

The only reasons I can see for this new case to go any differently would be emotional bias (if they find P2P a less sympathetic defendant than VCRs) or simply because there are different judges not and they want to write different law. But in either case I don't see how they could reasonably do that without effectively throwing VCRs back into contributory infringment for the infringment committed with them. But who knows? Maybe we'll wind up with an "infringment tax" slapped on all new VCRs.

-

Re:When will they give up ?

[Catiline]

...I don't see how they could reasonably do that without effectively throwing VCRs back into contributory infringment for the infringment committed with them. But who knows? Maybe we'll wind up with an "infringment tax" slapped on all new VCRs.

Agreed. What's even better is that this has a very nasty flip side -- if, due to this ruling, all home recording devices become infringement and we must pay a "tax" on them, recording now becomes very legal. (You know, like the Canadian CD levy.)

<disclaimer>IANAL. This is not legal advice. If you need legal advice, consult a lawyer.</disclaimer>

Re:When will they give up ?

[cpt kangarooski]

Does anyone have a constitutional problem with this statement?

Well, it's not all that accurate. It'd be better to say that their interpretation of the law becomes strongly binding. (later courts can go against it, but ultimately this'll result in the S.Ct. overturning, or affirming and changing their interpretation)

I for one am forced to agree with the poster that in fact the Supreme Court's decisions have, in effect (if not in practice also) basically made laws.

Well, there is a federal common law. But I think what you're actually talking about is not the Court making law but interpreting the Constitution, which is a higher law than any mere statute to come out of Congress. If the Constitution says Congress can't do something, then tough for Congress. The role of determining what the Constitution says chiefly falls to the courts. Courts normally interpret laws, so that's not a far leap for them. And since Congress can't be trusted with that power (since they'd always rubberstamp whatever they did), nor can the Executive (who has a similar problem), why would it not fall to the branch that does this same kind of work already?

I am disturbed by the idea that judges base their decisions in a case, not on laws themselves but on other judges decisions!

Actually they do both. An unfounded precedent won't hold up later. But generally following precedent grants stability; you know that a case will likely come out a particular way because prior cases with the same or sufficiently similar issues have too. I can't see how a judiciary could function without reference to precedent.

I feel that the lines of separation of powers between the courts and congress have been eroded and that the courts in today's United States have the real power in government.

That seems like a fairly dumb statement in this, the post-Lockner era. The courts are generally pretty favorable to Congress.

many judges that are elected run w/ no opposition so they cannot be removed by vote.

That's at the state level -- Art. III judges are appointed for life. No one cares much about Art. I judges.

Re:When will they give up ?

[westlake]

The Betamax ruling was that the maker of a product - and the court repeatedly used the word product -

It is a mistake to rest all your hopes on how a single word was used in a particular case. The Supreme Court tends to pull back sharply from too careless or sweeping a generalization.

Betamax was still nothing more than a video recorder. It presented the same legal problems as a photocopier, fax machine, etc., and that is how the issue would have been framed before the Court in the eighties.

A P2P network is usually both a program and a service. There may be a centralized file library or clearing house, something of the sort. From Grokster's home page:

"Grokster's SuperNode technology provides for the fastest searches. Grokster tracks detailed file info and allows detailed searches on it. Grokster will also track and remember up to 24 simultaneous searches." Grokster

The Court may be ready to decide that there is a level of invovement in the massive unlicensed distribution of copyrighted media through P2P networks that it is no longer willing to tolerate.

Remember that a grant of cert is rare. No more than two hundred cases a year get this far.

Re:When will they give up ?

[Zphbeeblbrox]

Yeah it disturbs me too. They really don't have any curtailing influence on them. All they have to do is pull the "its unconstitutional" card and bingo we have a new law. The problem is that we depend only on their honesty and integrity to stick within the bounds of their job description but have no real consquences for when they step out of them.

Re:When will they give up ?

[Alsee]

There may be a centralized file library or clearing house, something of the sort.

If you want to turn to an individual "centralized file library or clearing house" engaged in infringment that would be a completely seperate case against someone else.

We still have substantial non-infringing files and non-infringing use for various "centralized file libraries or clearing houses", and for the product itself.

I still don't see how you're claiming to make a distinction.

The Court may be ready to decide that there is a level of invovement in the massive unlicensed distribution of copyrighted media through P2P networks that it is no longer willing to tolerate.

As I said the court could make an emotional ruling if they find P2P less sympathetic than VCRs. But I still don't see how you think they can do so without reversing Betamax itself. Or are you suggestion a fundamental reversal of Betamax and liability for VCRs?

There are certainly people who think that Betamax should be reversed and VCR makers be liable. I think most people would consider that result a bit insane. There are certainly people who would like VCRs to be legal and P2P to be held liable, but I can't see any consistant logic to produce such a result.

-

Perhaps all we need to do is rename p2p...

[gameboyhippo]

I've got an idea. We could rename p2p to something else. You know, kinda like how solicitors get around the no-call list. After all, they're not soliciting, their giving me "curtisy calls".

Re:Perhaps all we need to do is rename p2p...

[Anonymous Coward]

ass2ass?

Re:Perhaps all we need to do is rename p2p...

[Anonymous Coward]

How about TPFKAP2P (The Program Formerly Known As P2P)?

Re:Perhaps all we need to do is rename p2p...

[goodzilla]

monsters Inc.... WE SCARE COS WE CARE :) P2P We SHARE cos we care... lets call it love spread or some random crap ... like carezilla hahhahaha

Re:Perhaps all we need to do is rename p2p...

[Alsee]

I suggest we name it Rosen-Valenti Love Child.

-

Re:Perhaps all we need to do is rename p2p...

[lachlan76]

Just remember: It's not P2P, it's distributed client-server!

Re:Perhaps all we need to do is rename p2p...

[Anonymous Coward]

Some possible names:

El Dorado
Salvation
Normandie

On the same vein, i believe the RIAA/MPAA should change name to Atlantis.

Hopefully the Supremes will get it right...

[ravenspear]

and put the smackdown on the **AA for good.

This could easily turn into a case as important as Sony/Betamax. Probably even more so because it will be a more recent ruling and will become cited more often on this topic since it basically deals with the same issues.

/. loves p2p

[Benaiah]

I think most /.ers will agree with me that p2p has become the life blood of the internet. Even look at the World of Warcraft patch distribution system. Its p2p! Should they be sued? Im sure many of the unenlightened solicitors would say AYE!

Re:/. loves p2p

[gl4ss]

p2p just happens to be the only real working form of micropayments(short of adverts).

Independent film

[saskboy]

I hope an independent film maker is making a documentary about this event. I mean it's perfect for an Indie film It's got a big bad business, a large maybe-bad business, and they are duking it out in the courts.

And after it's all over, they can distribute it in OGG format using Bit Torrent.

Re:Independent film

[klang]

Yes, an independendt film maker doing a documentary could easily get distributed using BitTorrent, but..using footage from anywhere would stab him in the back echonomically... oh, the irony

Re:Independent film

[mpe]

Yes, an independendt film maker doing a documentary could easily get distributed using BitTorrent, but..using footage from anywhere would stab him in the back echonomically... oh, the irony

Completly ironic, considering that this is exactly the opposite of what copyright (at least in the US) is ment to achieve.

Re:Independent film

[klang]

I think "copyright" was invented to give the printshop a chance (only a few years) to print books, to ensure that as many books as possible would be printet and not only the popular once... today, we are loosing a part of our current history because copyright holders hold too tight on some things, that's so sad..

I hate courts

[Anonymous Coward]

It's going to take them four months to write "Shut the fuck up, MGM"?

patent parallel

[Anonymous Coward]

doesn't this case have the same problem as the s/w patents case?

IE, a s/w program is simply an algorithm. If you invent an algorithm and someone else uses that for something 'bad', then what has that got to do with you?

Think of how many mathematical formulae were used to invent the atom bomb. Is/are the invertor/s of those formulae somehow responsible?

Re:patent parallel

[Anonymous Coward]

Yeah, don't even think about picking up that knife either. Or crowbar. Or ethernet cord. Or rock. Or pinecone - hell, even that stick and your shoe. And don't you fucking dare pick up that piece of paper. You MIGHT just give me a papercut!

Re:patent parallel

[westlake]

IE, a s/w program is simply an algorithm. If you invent an algorithm and someone else uses that for something 'bad', then what has that got to do with you?

plenty, if you market a program for a particular use, or are in a position to control how a program is used, or have reason to know it will be abused.

courts as a rule don't think in terms of abstractions, but of actions and consequences in the real world.

Re:patent parallel

[TubeSteak]

:Coughs:
Rip, Mix and Burn?
Now that was a hell of an ad campaign.

Re:patent parallel

[Xyrus]

"Plenty, if you market a program for a particular use, or are in a position to control how a program is used, or have reason to know it will be abused."

Tobacco, guns, and numerous other implements in our society fit this description. Even fast-food.

P2P is a file transfer protocal. Let's be clear on this. P2P IS A FILE TRANSFER PROTOCOL. Just like ftp, smtp, http, etc., these are all just ways to facilitate transferring data from point a to point b.

P2P has nothing to do with "piracy". Nor was it's original intent "piracy". No more than http (warez sites, anyone?).

Just because P2P is the flavor of the month when it comes to ALLEGED copyright infringement activity does not mean the entire protocal and any software that uses it should be illegal.

By that reasoning, guns should be made illegal. Guns are used in a large amount of the murders in this country.

Fast-food, indeed all junk-food, should be illegal because there is a high correlation between consuming such foods and heart disease, the number one killer in America.

"Courts as a rule don't think in terms of abstractions, but of actions and consequences in the real world."

For our sake I certainly hope not. Technology is often about the abstract. There are also plenty of abstract laws out there. Freedom itself is an abstract concept, with diferent people having different ideas about what it means.

If that were true then we better get the hell out of here now before this place becomes a fear-based right-wing corporate dictatorship!

Oh...yeah. :(

~X~
I heard tapping, as of someone gently rapping, rapping at my chamber door.

Quoth the RIAA,"PAY US MORE!".

Re:patent parallel

[Anonymous Coward]

Insightful mod points to parent please, mods.

We're going to lose.

[Anonymous Coward]

I love America and everything, but he who has the deeper pockets ultimately wins.

Re:We're going to lose.

[Anonymous Coward]

yeah, the day that the USA was for 'the people' have long gone.

Hrm. I wonder if there was a signficant turning point...

Re:We're going to lose.

[klang]

Isn't that what they call "the American way"?

this one will rease your history..

it's so sad.

Re:We're going to lose.

[mikeb39]

Frankly, I don't. And I think that's just fucking sick.

Love,
-Canada

Re:We're going to lose.

[leuk_he]

Since the "network neighbourghood" of microsft can be seen as an p2p application. It remains to be seen who will win eventually.

The 9th Circuit was spot on in this case

[ravenspear]

The following quote at the end of the 9th Circuit's opinion really sums up the situation quite well.

"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."

Re:The 9th Circuit was spot on in this case

[ari_j]

The only problem is that the 9th Circuit is the most-reversed circuit there is. Their logic here is good and their result is just, but that doesn't mean they won't find out that they were wrong once again.

Oral arguments?

[Anonymous Coward]

Oral arguments? Sounds like the title of a porn film set in a courtroom. Maybe that's what they're really doing? It will be like Eyes Wide Shut, but with penetration. And no masks.

Other companies

[ICECommander]

Why don't we sue knife, gun, and tobacco manufacturers as well? Oh wait...

Re:Other companies

[JNighthawk]

The use of a gun is to kill someone. There is no other use for it. The gun isn't made to change the channel on a TV, or open up a can... it's made to HURT and KILL people. Same with ciagarettes.

Re:Other companies

[mpe]

The use of a gun is to kill someone. There is no other use for it.

At least until someone invents the idea of a sport involving shooting at a target. Might even become party of the Olympics :)

Re:Other companies

[JNighthawk]

pwned. :-(

Re:Other companies

[Jim_Callahan]

Yes, because the tabacco plant was all "Dude, let's evolve so that we're dangerous to the human chemical system, then make them smoke us". And wtf is this 'hurt' crap? Most guns are designed to kill things, which is often perfectly legal (raccoons, deer, national enemies). Hurt, my ass. If your target is still alive to hurt, you've screwed up, bud.

Re:Other companies

[lifer_red]

Actually a number of people in the world use guns to defend themselves from wild creatures, and to get food. Quite closed thinking to consider it's only for killing humans.

Cigarettes are used to calm people (apparently, I've never felt the need myself). Social enjoyment and all that. The death is well-warned to the consumer (in Britain anyway). Personally I don't think much of cigarettes, but the consumers (through taxes) do pay a fair bit of the public health bill.

Re:Other companies

[Anonymous Coward]

No, the aim of a modern military weapon is to wound. A wounded person needs several other people to take care of them where as a dead person needs no one.

Unless you're in the American military of course where they'll sacrifice many lives just so not to leave dead American bodies around.

Re:Other companies

[Jedi Alec]

The use of a gun is to kill someone.

Perhaps a more accurate statement would be that a gun is made to punch holes into things at a distance.

Re:Other companies

[Steve B]

The use of a gun is to kill someone.

That depends on the circumstances. Guns optimally designed to defend you from a burglar or rapist ought to kill -- that minimizes the risk of being subjected to a frivolous lawsuit for hurting the poor widdle cwiminal. Guns optimally designed for war should preferably disable rather than kill -- that takes up more enemy resources unless you're fighting somebody who doesn't give a damn about his own wounded.

Re:Other companies

[Anonymous Coward]

> pwned. :-(

Sounds like something you might yell if you were playing a sport involving shooting at targets. Except you got the smiley backwards.

PWNED. :)

The day corporations were considered people.

[Anonymous Coward]

That was pretty much the beginning of the end.

They'll go to Congress

[tepples]

They'll give up based on what the Supreme Court says.

No, they won't.

In percentage?

[tepples]

The only problem is that the 9th Circuit is the most-reversed circuit there is.

Is that by number of cases reversed, or is it by percentage of cases reversed? Some circuits just hear more appellate cases than other circuits. For example, if you have 100 cases and 17 reversed in one circuit, isn't that better than 10 cases and 4 reversed in another circuit?

Re:In percentage?

[ari_j]

I'm not certain if it's volume or percentage. I'm not the one who came up with that saying. However, as a general rule of thumb the Supreme Court won't even hear an appeal unless there is a circuit split on the issue (or they think it's just downright wrong, but that happens less often). What I suspect is the case is that the 9th circuit is the most common one to split from other circuits, and is the one most often found to be in the wrong in those situations.

But I'm certainly no scholar of 9th Circuit history. And yes, I'd rather be wrong 17 times out of 100 than 4 out of 10. In fact, I'd rather be wrong 50 times out of 100 than 4 out of 10. Wrong half the time out of 100 means you are often wrong, but you are a hard worker. Wrong 40% of the time out of 10 cases heard means you are not only wrong pretty frequently, but you are lazy, and I hate laziness and dishonesty more than any other human traits.

Re:In percentage?

[Anonymous Coward]

I'm not the one who came up with that saying.

You ARE the one who said:

The only problem is that the 9th Circuit is the most-reversed circuit there is.

It's only a couple of places back up this thread, you can't have forgotten it already. It isn't a "saying" it's a factual claim that you made. It's either true or not. It seeems that you have no idea which so why did you say it?

Re:In percentage?

[einhverfr]

However, as a general rule of thumb the Supreme Court won't even hear an appeal unless there is a circuit split on the issue (or they think it's just downright wrong, but that happens less often).

I thought they based it on whether there was inconsistance in the district rulings (i.e. if the 4th and 9th districts disagree on leagl theory, then it is a good time to have a ruling), or if substantial constitutional issues are at stake. The court could just be afraid that this will start popping up everywhere else given the rash of john doe suits the RIAA is filing.

Re:In percentage?

[ravenspear]

given the rash of john doe suits the RIAA is filing

That's really a completely separate issue though. In those cases the RIAA is accusing individuals of directly committing copyright infringement. At issue in the Grokster case is whether P2P networks are guilty of contributory infringement based on the actions of those users.

Re:In percentage?

[cpt kangarooski]

It's volume. By percentage it's pretty average. Someone put together a scorecard of this for 2003 here and while there's not enough data given only the one year, it's pretty clear that the main thing is that so damn many 9th Cir. cases go up. Way more than from anyplace else.

Basically, the 9th Cir. is too big. It needs to be split into a 9th and 12th, just like we split the old 5th into the current 5th and the 11th. (Hell, you might even be able to split it three ways)

Re:In percentage?

[kuma_act]

Just to clarify here, the Federal Court system has three levels. The District Courts are your trial courts. Every case has to start in a District Court. The losing party at the trial court level is entitled to one appeal as of right; that is, they are guaranteed one appeal if they choose to take it. Not everyone takes it, as appellate lawyers are expensive.

Your appeal goes to the Circuit Court that covers your region of the country. There are 13 total. 12 Regional (11 are numbered, 1 through 11, and then the 12th is the D.C. Circuit). For example, in this case, the Ninth Circuit, which covers the entire Pacific coast, as well as Nevada, Arizona, Idaho, and Montana. The Ninth Circuit tends to be much more liberal in their decisions than other circuits. For reference, the Fourth Circuit, which covers Virginia, West Virginia, Maryland, and the Carolinas, tends to be very conservative in its decisions. In addition, you have the Federal Circuit, which is the only federal circuit whose jurisdiction is not based on the location of the trial court, but instead on the subject matter of the case. They get ALL of the nation's patent law cases, among other subjects.

The Ninth Circuit is also the largest federal circuit court, with 47 judges on the circuit. By comparison, the Second Circuit (New York, Connecticut, and Vermont), which is the next largest, has 23 judges.

You can see a map of the Circuits here:

http://www.uscourts.gov/links.html

District Courts are required to follow the decisions of the Circuit Court that their cases are appealed to. So, for example, Ninth Circuit decisions are binding in California, but are only "persuasive" in Maryland, which is required to follow the decisions of the Fourth Circuit.

Therefore, if two Circuits look at the same issue and come down the wrong way, then the law on an issue changes depending on where you are in the Country. It's far better for the law, at least at a federal level, to be consistent and not vary depeending on where you are. That's why the Supreme Court is more likely to take a case resulting from a Circuit split.

Re:In percentage?

[ari_j]

Do you understand the difference between saying something and coining or, as I used, "coming up with" it?

Re:In percentage?

[ari_j]

I worry about dividing the 9th Circuit, because the only way to divide it that doesn't involve splitting a state or having one circuit that hears almost as many as the 9th currently does is to have "Circuit of California" and the rest of the old 9th. The 9th Circuit is liberal enough (relative to the others) as it is, but limiting it to California would just be nuts.

Then you have the possibility of splitting California, but that would introduce not only the possibility of inconsistency of federal law governing California but also political diviseness as Washington fights to control NoCal and Arizona fights to control SoCal.

If there is a good way to do it, I don't know what it is. But I don't think either of these is a good answer.

Re:In percentage?

[cpt kangarooski]

Could be. Honestly, I'm not all that familiar with how many cases come into the 9th from its districts; I'm out in the 1st Cir.

Re:In percentage?

[ari_j]

Nice signature line. I should probably standardize my disclaimer a bit.

I'm in the 4th right now while I learn all about it, and have no idea if a study has been done of which districts in the 9th Circuit appeal the most and which of their appeals get cert. the most. I do think it'd be interesting, because the 9th Circuit certainly is a problem. With the number of judges it has, it's rare that any given pair of judges will hear more than one case together.

Re:In percentage?

[rhombic]

Or, as many of us in California would like right now, just split us off entirely.

We're already in the top 10 world economies, and pay considerably more in federal taxes than we get back in federal spending. Our vote for president is nearly worthless, and b/c of the massive population differences, my voice in the Senate carries only about 6% of the weight it did back when I lived in Kansas (on a per capita basis). We've got established agriculture, manufacturing, and plenty of natural resources.

We're frankly getting a little tired of having people from the rest of the country simultaneously take from us, and tell us what to do. Enough already! (If the folks from WA and OR want to come along, that'd be great too. Seattle has good beer.)

Re:In percentage?

[ari_j]

You do understand that the Electoral College and Senate were designed specifically to limit how much authority highly populous states would have over the rest of the nation, right? The United States of America are not a democracy - they are a constitutional republic. If you sit down and think about it, written constitutions and democracy are mutually exclusive.

Both

[tepples]

Is Sony any part of the RIAA or MPAA?

Now that Universal and Warner have sold off their record label assets, Sony is the only company that is both a major record label and a major movie studio.

God help us

[mboverload]

God help humanity if Groakster loses. They are not just fighting for rights, they are fighting for the future of communication itself.

Re:God help us

[Anonymous Coward]

Shut up. What the hell are you talking about.

Re:God help us

[lineman60]

I am no legal scholar but to the parent, Well I don't quite take the statement that far, I do see this case a very important. I don't see this as not being much different then the Marvel V. NCsoft. They both produced a way by which IP law was violated.

if the creator of a product is held liable for the actions of its users and Groakster loses. Then marvel should win its case because NCsoft http://games.slashdot.org/article.pl?sid=05/01/19/ 2143224&tid=209&tid=187&tid=123 did create a way for ip law to be violated. and we end up with Crayola being sued by the MPAA because some kid made a Spiderman poster. if Sony losses then Marvel should loses too, (or at least Marvel has a difficult time to porve its case)because NCsoft is not reasonable for what there players do. I can see this case having a far reaching impact. This is just one immediate impact I think this case could have.

My 2 cents

Re:God help us

[Esteanil]

Nah. Not the world. God help America if Grokster loses. It'll just mean you've voted yourself one more step off the map. Hollywood is losing it's glory. The big things coming up are European and Asian movies. And with digital videocameras the way they are now, we can make movies *cheaply*! So why worry about piracy? The DVDs will sell well anyway, and there isn't anywhere near as big an investment as in yesterday's movies. CGI and special effects is getting really cheap too. Also, we don't have the american moralism. We can make movies with lots of nudity in them, and still be within what americans would call PG13. When Bush won again, I think most of the world started preparing for the time when America will no longer be a significant world power... It'll be tough economically for a while, but we *can* make it. It's not that we don't like Americans, it's that so many of us simply can't quite believe you're gonna survive as a world power with your empire-building efforts. You've already lost in Iraq, or so it seems. What, Iran next?

Re:God help us

[Anonymous Coward]

bush has nothing to do with it.
he is not to blame for everything.

"oh it snowed today, damn gw bush, it is his fault"

regardless of party, they are whores to the big media companies, the democrats proved it in the 90s, the republicans are proving it now.

So what?

[Anonymous Coward]

The court will rule on what the feel congress' intent was with the copyright act.

So congress will just rewrite the law to suit Hollywood simple as that.

This court is not looking at whether p2p is a constitutional right .. merely whther the law written by congress is properly interpreted!

It's important to understand this!

Re:So what?

[einhverfr]

So congress will just rewrite the law to suit Hollywood simple as that.

Not quite as simple as that. This fails to note that today (unlike when the CTEA and the DMCA passed) there is substantial indistry opposition to such extensions. So there will be another huge fight like there was over INDUCE, CBIPA (or whatever it was that would have required DRM in cruise missiles)...

its not really about infringement

[TubeSteak]

The **AA are really suing because of copy infringement etc.

I think they are mostly pissed off that Grokster (and Napster back in the day) are making money off the P2P software.

The **AA must be so steamed that not only does Grokster make money off of ad sales, but they have the nerve to sell a 'pro' version.

Notice how they haven't gone after Justin Frankell for writing Waste (or Gnutella for that matter) and they've ignored Bram Cohen even though Bittorrent takes up a significant portion of internet bandwidth nowadays.

I'd love to see them sue every damn software company that writes FTP progs. They'll probably have to go after Microsoft too, because windows has a native (though shitty) ability to serve files.

Re:its not really about infringement

[Walkiry]

They haven't gone after Bram Cohen yet. You just try first with the guys who are making money off the P2P program to see if you can put some liability on them, then keep sliding down the slippery slope until you can nail the guy whose program is used for notorious legal purposes (Linux ISOs, World of Warcraft, Anarchy Online, game demos in a few gaming websites come to mind). Just wait.

Re:its not really about infringement

[milohanrahan]

Though Bram Cohen's been careful only to put his name to 'legit' uses of bt - the website has all this crap about distribution solutions for business - it's obvious even to the uninitiated what the potential is for abuse. Sooner or later, he's going to get it too.

Re:its not really about infringement

[AviLazar]

First they came out for Napster
and I did not speak out because I was not Napster
Then they came out for 1-2-3 Studios
and I did not speak out, because I was not 1-2-3 Studios
Then they came out for Grokster
and I did not speak out, because I was not Grokster
Then they came for me,
and I squished them..who are they kidding, I'm Microsoft!

Re:its not really about infringement

[fizbin]

the website has all this crap about distribution solutions for business

Crap? This was what bittorrent was designed for - distributing ISOs. It's deliberately not encrypted, offers no anonymizing features, and the tracker is a nice, lawsuit-targetable single point of failure for any illegal file. It's about as friendly to the **AA as you can get for a new protocol without contacting them directly with a list of filenames.

The only thing bittorrent does that in any way facilitates piracy is that someone hosting warez doesn't also get hit with a huge bandwidth bill. That's all; other than that, it might as well be nothing more than a webserver.

As for legal uses, besides the stuff on http://www.legaltorrents.com/, and linux ISOs (bittorrent is really /the/ way to download a new knoppix ISO), consider this scenario:

You're an academic institution with three separate computer labs. Each of these labs has a few dozen machines, all interconnected by a fast 1 Gig lan, though the connections between the labs is much slower. You've got a central server, not in any of the labs, that needs to distribute several large files (virtual PC disk images) to all of the machines in all the labs nightly. (the disk images change that often)

The solution? An internal bittorrent network. Easy to set up centrally and automate on all the machines, and it takes advantage of the large intra-lab bandwidth. The previous solution - rsyncing from the central machine - would take 5-6 hours and spike the central server's CPU almost the whole time. (the way the disk images change is apparently not rsync-friendly) This solution takes less than an hour with no serious CPU load on the central server; after all, the tracker is only watching a few hundred clients at once.

(Disclaimer: I didn't do this, I just was talking to the guy who did)

Re:its not really about infringement

[Fjandr]

My kingdom for some mod points. :)

Re:Black pussy is good.

[khellendros1984]

WHAT THE FUCK?? How the hell did we get from copyrights to objectifying women, racism, and general stupidity? Thoughts like this are why I don't like stating my sex and race online, and why I think the human race is screwed in the long run.

Does Rehnquist own a VCR?

[Anonymous Coward]

Does Rehnquist own a VCR?

Anyone know? He voted against VCR's didnt he?

They say that P2P software is always used to.....

[Cyanidedd]

Just one comment... Movies made me do it.

Prediction: We will lose.

[Anonymous Coward]

This is, after all, the USA. After what happened in November, I have given up all hope of ever seeing developments in this country that would not appall any reasonable person. The ship is sinking, people.

Re:Prediction: We will lose.

[bhirsch]

The vast right wing conspiracy never sleeps!

Re:Prediction: We will lose.

[Jim_Callahan]

If I had mod points, I'd mod you +funny.

Re:Prediction: We will lose.

[bhirsch]

It's the thought that counts.

I'm dying to know

[Anonymous Coward]

I'm dying to know if Rehnquist (who voted against BetaMax) owna VCR.

Can someone in the media ask him. After all he almost screwed everyone by banning the thing, cause, well the damn thing doesnt have any non infringing uses that he could think of.

If he's a VCR owner, I'm sure he doesnt even realize the hypocrisy.

Sigh.

Re:They say that P2P software is always used to...

[Beolach]

No no no, it's the video games fault now, you're like 5 or 10 years out of date.

Interesting

[Anonymous Coward]

When your product is used to kill people, you are not at fault. However, if it intrudes on profit margins (or is a convienent scapegoat) you are liable. Excellent. God bless America(tm)

Buddy, you've been trolled.

[Anonymous Coward]

Let it go man, you'll only encourage them. It's probably some 14-year old agnst ridden hormone-crazy kid anyway. Eventually they grow out of it.

We rule the world!

[lovesignal]

As we all know the final ruling will have ramifications on the tech world well beyond P2P Please, keep the dimensions in check :-) USA != tech world Freedom is just another word for nothing left to lose...

Re:We rule the world!

[UlfGabe]

watch out there with the != , the USA has partners around the world, and often getting laws/regulations passed causes its around the world partners to HELP enforce the work. It's ok if you live in Some country that hates the states, but not if you are living in a buddy buddy of the states.

Petition quote

[Piquan]

I've been reading the documents involved, particularly the Ninth Circuit's decision and the **AA's petition for cert (request that the Supreme Court hear the case). It's been a while since I read Betamax, so I'll have to go back and read it next.

But quotes from the petition are sometimes thought-provoking, sometimes absurd. Most of the petition is **AA saying, "The Ninth Circuit misinterpreted Betamax! Look at the Seventh Circuit; they got it right!" Much of the arguments in the **AA's petition revolve around the argument that since the network could have been designed to block infringement, it should. (Personally, I doubt that the network could be so designed, since not even the mighty **AA has demonstrated an ability to effectively distinguish infringing uses. But most of the arguments have talked about the ability to block, rather than the technically more problematic ability to identify.)

One of the sidesplitters in the petition is this:

Similarly, under the Ninth Circuit's test a defendant's ability to block infringement is rendered irrelevant except in the narrowest circumstances.

The narrowest circumstances? The circumstances we have to consider are those on what we call planet Earth, not whatever alternative dimension that the **AA would like to live in. Indeed, the problem they have is that the "ability to block infringement" is only considered relevant if they actually, in real life do have such ability.

Oh, well, those are narrow circumstances indeed; we should instead consider if, in any imaginable world, they might have such an ability, and bend reality to match that world. Sorry, guys, we have to consider actual ability to block, not what they might have if they set themselves up exactly like Napster.

Most of the petition reads like this. The **AA feel that, because the network was designed without central control, that's evidence that they're guilty. It should have been designed with central control, and should prevent any infringing uses, because that would make the **AA happy. Because it's not designed that way, then Streamcast/Grokster are guilty of contributory and vicarious infringement.

The Ninth Circuit's opinion, by the way, is also a good read. Much less maddening than this petition, for sure.

Bad Precedent:

[Jim_Callahan]

Making companies liable for illegal actions consciously performed by end users of their products is an extremely bad precedent to set. If I play my music too loudly and am fined for breaking city ordinance, I don't think MGM wants to pay the fine because it's the soundtrack to a movie they own. Basically, even if there is a legitimate justification for shutting down p2p, this is a bad way to go about it.

Re:Bad Precedent:

[Kervokian]

Yep, I agree.

So

[Jim_Callahan]

which one is big bad, and which one is maybe bad? I'm guessing that since grokster has a large base of users, is probably over 99% illegal, and has a rather foolish name, it's the "big bad". Meanwhile, the completely legal company MGM, whose products don't suck most of the time, could still be evil were there to be a twist in the story, so it comes out to a maybe.

the difference

[Jim_Callahan]

is that the atom bomb really didn't have much potential for illegal use.

Re:the difference

[Anonymous Coward]

What would be a legal use?

Attention!

[Anonymous Coward]

According to research http could be used for illegal file exchange. Please disable http support for your browsers.

I read the definition....

[Kjella]

...at least the one in the CA bill recently, and essentially a P2P program is defined as a program capable of both upload and download. Like say your browser (http upload forms), email client, basicly everything people consider to be the Internet. The only thing that wouldn't qualify are the dumb terminals of the 70s. It is a blanket coverage to take out whichever application bugs them.

Kjella

Re:I read the definition....

[HTH NE1]

I read the definition...at least the one in the CA bill recently, and essentially a P2P program is defined as a program capable of both upload and download.

In precisely those words, "upload" and "download"?

I have yet to see a P2P program that allows someone to upload a file onto another's machine, in the original, technical sense of the word. Everyone pulls files, i.e. is downloading. No one is uploading.

Anthropomorphizing the machines as the actors is not proper usage of the upload/download terminology, especially if you say because the machine uploaded to the person requesting the file, so did the person who set up the machine to be operated by the downloader. The newthink just seeks to assign liability to someone for another's overt act.

There's a group waiting in the wings

[Open Council]

That plans to sue the Government at all levels for the provision and maintenance of roads .. They have indisputable proof that this "roads" infrastrucure has been used in over 80% of all crimes.

Re:There's a group waiting in the wings

[Open Council]

and if there were no electricity supply, how could anyone use a computer to steal copyrighted material ?

Re:There's a group waiting in the wings

[Anonymous Coward]

If this passes, we can sue Microsoft for allowing us to transfer IP. Look at what p2p runs on most of the time. If p2p is liable, so is the Windows it runs on. This could be good, but I doubt it.

There is a difference between P2P and Betamax

[Anonymous Coward]

The difference between P2P and Betamax software is that P2P is almost never used legally. What percentage of P2P exchanges are illegal? I don't know, but I have never seen anyone do it. I know that some people will chime in and say they use it at school or at work or they are a musician themselves, but these are in the vast minority. In addition, there are other ways to share files other than using P2P. P2P software is written for and marketed to the copyright infringer. Much of this software also makes piracy even easier by offering to search your hard drive for files to share.

Betamax on the other hand had a legitament market target of home video renters and buyers. They did not sell wireless transmitters nor give instructions on how to transmit the movies to thousands of people, let alone make sharing your whole video collection as easy as clicking yes.

Re:There is a difference between P2P and Betamax

[sjlutz]

There may well be a difference in it's use, but there isn't a legal difference, and that's what the court should be concerned about.

I could easily observe that most use of guns (by civilians) is used for illegal matters (murders, robberies, etc) because I do not hang out with a bunch of hunters that may use their rifles for legal purposes every weekend of the year.

Even if I did agree with your argument, in the BetaMax case, it obviously had some support because distributors released movies in BetaMax format.

But because this new format is not something the **IA doesn't support and hasn't released anything on, it there should be illegal?

To put it another way, what if the **IA came up with a technology where they could release movies/songs over the P2P networks that they accepted, and did so on a small scale. Would the 2 cases then be similar?

If you answered yes, then there is plenty of indi-music available available which is probably much like the early adopters of BetaMax movies which then makes these 2 case equal again in your eyes.

Re:There is a difference between P2P and Betamax

[richieb]

The difference between P2P and Betamax software is that P2P is almost never used legally.

First of all you need to be more precise what you mean by P2P. TCP/IP is a peer-2-peer protocol and the Internet is therefore a large P2P network. Is not Internet used for some legal purposes?

Typical P2P apps (like Kazaa, Limewire, BitTorrent) are simply schemes to efficiently distribute files among a lot of computers. What the files contain is immaterial.

Are you trying to ban the idea of this kind of distribution?

As it turns out there are plently of perfectly legitimate uses for these kinds of applications (and more coming), besides distributing Linx ISOs.

Here is one: Goverment Document Library

Re:There is a difference between P2P and Betamax

[richieb]

Just to follow up on my own post. Here is a description of a P2P app that can be used for backup: Baxter P-2-P Backup

Re:There is a difference between P2P and Betamax

[Anonymous Coward]

It was recently posted here on Slashdot (look it up, I'm too lazy to provide the link) that Kazaa has an estimated 100,000,000 users sharing 3 billion files per month. Even if 90% of those files were infringing someone's copyright, that still leaves 300,000,000 non-infringing files per month.

That sounds like significant non-infinging use to me.

Re:There is a difference between P2P and Betamax

[Anonymous Coward]

P2P is almost never used legally

this is compltely irrelevant. if you read the betamax decision, a device/scheme/technology merely needs to be capableof a non-infringing use to be considered legitimate.

bittorrent was made for a legal purpose

[pixel fairy]

to distribute large files, specifically OS distributions. even if 99% of its use is movies or whatever, that doesnt change the fact that nothing in its design shows any illegal motovation.

I don't know, but I have never seen anyone do it. I know that some people will chime in and say they use it at school or at work or they are a musician themselves, but these are in the vast minority.

heres a clue: not everyone on the internet is downloading movies. some of us have legitmate reasons.

heres a chime in, every use of bittorrent i have done has been for os distribution, and i know several others who have done the same. when fedora came out, almost all of us (LUG in the valley in Los Angeles) used bittorrent to get it.

it really is a good method. even commercial entities are using it.

heres hoping some os distribution makes a p2p update protocol. maybe one like ubuntu or gentoo...

Jurists of Peers

[Doc Ruby]

Since Rehnquist is a dead man walking, and Thomas never asks a single question during a case, but rather issues opinions a priori from his beautiful mind, that leaves only 7 other Supremes who will actually think about the case as argued. None of these people has ever used a P2P; they all can remember the excitement of wireless - FDR's fireside chats over Depression radio. Is there any chance the "final" Grokster decision will reflect the 21st Century freedom of P2P media, or just some disconnected calculus of competing corporate media interests?

Psst... The US != "The Tech World"

[citizenc]

Quoth the poster, "As we all know the final ruling will have ramifications on the tech world well beyond P2P."

I hate to break it to you, but the United States isn't the center of the universe, tech or otherwise. Yes, the crazy anti-P2P movement will likely have a horrible effect to US residents, but please. Don't generalize. :P

o Feb 13, 2004: File-swapping lawsuits loom in Canada
o Mar 31, 2004: Judge: File-swapping legal in Canada
o June 30, 2004: Canadian ISPs win on copyright ruling
o Dec 17, 2004: Judge tosses Canada's 'iPod tax'

Instead of bitching about all the American P2P laws, why don't you guys just move to Canada already? It seems like we've gotten it right. ;)

Re:Psst... The US != "The Tech World"

[Xyrus]

The US != The TechWorld is 100% true.

No, if this decision goes badly the US will become a technological backwater. Why, because the decision will give acts like the Induce Act, DMCA, and the new SR96 (not sure if I have that one right) legs to stand on. Technological innovations regarding communications in all forms would come to a screeching halt as ridiculous measure are built into these devices.

But, most of these devices are not built in the US. They are built overseas. So these acts will have a direct influence on these foriegn economies. Either their infrastructures would have to adapt to pass US laws for importing, or they just stop selling to the US.

More than likely, I think they eventually might stop selling to the US, as China and India are advancing at record speeds and have 4 to 5 billion people between them. They also don't have draconian tech laws.

A win for the Media Corps in this case would be a major loss to the US in general.

~X~

Betamax's days are numbered.

[russotto]

This case is what Jack Valenti and his minions and successor have been waiting for for decades... a case where the Supreme Court must either rule for a highly unsympathetic and shady defendant, or overturn Betamax.

They won't overturn the entire thing. They probably won't even explicitly say they're overturning it. But what will happen is the "substantial noninfringing use" test will be modified, changed to "primarily noninfringing uses" or whatever else it takes to get a rule which excludes Grokster from protection. And as a result the Betamax decision will be worthless as a defense against infringement claims against technology makers. The new test will be too weak and too subject to interpretation in favor of the MPAA to do so.

The part about time-shifting being non-infringing will remain, so the VCR itself will remain on the shelves (thus preventing any real outcry), but the future belongs to the MPAA.

One more reason

[bluGill]

Correct, but I'd like to add one thing: the Supreme Court is hard to reverse, so they try extra hard to get things right. If one court has made a decision and it isn't obviously horridly wrong they prefer to let it stand until a different court comes to a different decision. That way more people have thought about the issue. Then they can read the thinking of everyone who thought about it, and are more likely to come up with the right ruling.

There are only two ways to reverse the supreme court: act of congress, and a latter supreme court decision. Both are fairly rare.

Re:One more reason

[ari_j]

There is another way to reverse the Supreme Court, which is probably almost as common as the other two: Constitutional amendment. (See Dred Scott.)

When the Supreme Court reverses itself, it's important to remember also that it does not do so all the sudden, out of the blue. Usually, there will be a string of cases over the course of several decades which gradually go from unanimous one direction to the final justice changing his mind and a 5-4 decision coming down the other direction.

Since the reversal procedure is usually gradual and certiorari is granted only rarely and even more rarely to even remotely similar cases where the lower courts appear to be doing things according to the old decisions, it can take a long time. It's probably quicker to ratify an amendment.

Re:One more reason

[kuma_act]

Quote: "the Supreme Court is hard to reverse, so they try extra hard to get things right."

But to paraphrase the late Justice Jackson, the Supreme Court isn't final because it's infallible, it's infallible because it's final.

finally!

[AdamGott]

Mark my words: There is absolutely NO way that the supreme court will rule against Grokster. Think of the implications if they are found liable for the way people USE their product - gun manufacturers, alcohol manufacturers, auto manufacturers, tobacco companies (oh wait!), etc. A pro MGM ruling is, in effect, telling ALL companies that they are liable for the way consumers use their products.

Laziness?

[tepples]

Wrong half the time out of 100 means you are often wrong, but you are a hard worker. Wrong 40% of the time out of 10 cases heard means you are not only wrong pretty frequently, but you are lazy

Because the federal appeals circuits are not equal in population, they're not going to be equal in the number of cases referred to their courts. If there aren't as many cases in the district courts in your circuit, you don't have as many chances to take an appeal. So do you claim that appellate judges are "lazy" for not moving their whole families to another state in a busier circuit?

U.S. law decisions have worldwide ramifications

[Anonymous Coward]

Obviously, court decisions in the U.S. aren't binding in most of the world. The big problem is that the U.S. is such a huge market and an influential country that many companies and industry associations, armed with a victory in the U.S. can start pushing that as *persuasive* precedent overseas. All they have to do is point to the laws in the U.S., find some bogus/skewed figures indicating that the restrictive U/S/ laws are good for industry and the economy, and they're a good way to convincing the legislature or judiciary of some other country to follow suit.

Possible Loophole

[koranth]

I'm not a lawyer, but...

MGM was purchased by Sony Entertainment some months ago.

Meaning that MGM no longer exists as an independent corporate entity.

Given that, couldn't the Grokster team argue that since MGM no longer exists, Grokster by definition cannot be causing harm?

(The Wade team in Roe v. Wade presented a similar argument, saying that since Jane Roe had already given birth, whether or not she could have access to an abortion after the fact was a moot point.)

If Grokster is liable, then the RIAA is liable!

[Anonymous Coward]

So, if they rule against P2P, that says that Grokster et all is liable for how consumers use their products. That means every company is liable for how their products are used. But this has already been determined in the USA. Tobacco companies are responsible for cancer victims. That was also a bad decision, but just because its bad, doesn't mean it won't happen. If it does then...

I am gonna take my "RIAA" CDs and drop them off a bridge onto a freeway full of cars. If they do any damage or cause any accidents, then the RIAA can pay the fines for the wrongful way I used their products!