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Opening Salvo Filed In MGM v. Grokster

Posted by timothy on from the yes-it-says-filed dept.

Aire Libre writes "The first brief on the merits before the Supreme Court in MGM Studios v. Grokster was filed Friday (January 21, 2004) by the Video Software Dealers Association. The brief suggests that while p2p systems may be used for infringing and noninfringing uses, courts should consider whether technologies may be used to reduce infringing uses without over-burdening the system provider, freedom of speech for non-infringing uses (including by copyright owners who want p2p systems to be used to reach their audiences) or freedom of competition (including first sale doctrine principles, and competition in providing all intermediate software and services). Bringing a retailer perspective, it strikes a balance of respect for copyright and respect for the limits of those copyrights. The brief is available here (in PDF)."

26 of 90 comments (clear)

  1. Huh? by Black+Parrot · · Score: 2, Funny


    What is this "respect for copyright" you speak of?

    --
    Sheesh, evil *and* a jerk. -- Jade
  2. timothy, an FYI: by Slash+Watch · · Score: 3, Insightful
    A "salvo" is something that is fired. A "suit" is something that is filed.
    From Webster's Revised Unabridged Dictionary (1913) [web1913]:

    Salvo \Sal"vo\, n. [F. salve a discharge of heavy cannon, a
    volley, L. salve hail, imperat. of salvere to be well, akin
    to salvus well. See {Safe}.]
    1. (Mil.) A concentrated fire from pieces of artillery, as in
    endeavoring to make a break in a fortification; a volley.

    2. A salute paid by a simultaneous, or nearly simultaneous,
    firing of a number of cannon.

    From WordNet (r) 2.0 [wn]:

    salvo
    n 1: an outburst resembling the discharge of firearms or the
    release of bombs
    2: rapid simultaneous discharge of firearms; "our fusillade
    from the left flank caught them by surprise" [syn: {fusillade},
    {volley}, {burst}]
    3: a sudden outburst of cheers; "there was a salvo of approval"
    [also: {salvoes} (pl)]
    1. Re:timothy, an FYI: by HolyCoitus · · Score: 2, Funny

      Arrrr matey. When dealin' wit' pirates, everytin' be a salvo!

      --
      That's scary.
  3. I think a more important question is: by imstanny · · Score: 3, Insightful

    Can you take away rights of the innocent in order to prevent illegal actions? To me... outlawing p2p (which on its own is legal) to stop illegal file transfers is like outlawing driving cars in order to stop people from speeding.

    1. Re:I think a more important question is: by gnugie · · Score: 2, Insightful
      Can you take away rights of the innocent in order to prevent illegal actions?

      You just redefine the new activity as illegal. Drunk driving is defined as illegal, but the vast majority of drunks don't actually injure others on the road. No one seems to disagree that their rights shouldn't be preserved, though.

      There are other precedents, too. Certain guns are illegal, despite the 2nd amendment. Why couldn't the courts rule certain software illegal? Software doesn't even have it's own amendment protecting it.

      --
      Don't know; Don't care; Don't ask
    2. Re:I think a more important question is: by shark72 · · Score: 2, Insightful

      "Can you take away rights of the innocent in order to prevent illegal actions? To me... outlawing p2p (which on its own is legal) to stop illegal file transfers is like outlawing driving cars in order to stop people from speeding."

      Continuing your analogy, the goal of various pieces of litigation and legislation as of late is to force P2P software vendors to act in a more responsible manner. I suppose you could compare this to legislation to require cars to pass minimum crash standards and to include safety belts, or litigation against car makers who make unsafe products.

      On one side, there are rightsholders who ask that P2P vendors make attempts to ensure that any content on the network is there with the creators' permission. On the other side, the P2P vendors largely refuse to even consider such a thing; the common argument is that (despite some compelling demonstrations to the contrary) any fingerprinting or filtering system would be absolutely unworkable. The 500 lb. elephant in the room that the P2P providers are ignoring is, of course, that a network without warez, porn and MP3s is a network that people will simply not use in a volume approaching the traffic on unrestricted P2P networks. The folks at Kazaa have gotten very, very rich by providing a medium for piracy, and just like the rightsholders, they don't want to see their revenue stream evaporate.

      In short, it's two businesses that want to protect their revenue stream. It's no surprise which side Slashdotters at large are on; it's similar to the situation in which a three-year-old will have more affection for the nice parent that gives them free candy vs. the mean one who doesn't.

      --
      Sitting in my day care, the art is decopainted.
    3. Re:I think a more important question is: by ari_j · · Score: 2, Insightful

      I'm sorry, but I call bullshit.

    4. Re:I think a more important question is: by MinotaurUK · · Score: 2, Insightful

      Continuing the car analogy a little further, isn't what the entertainment industry is trying to force the P2P companies to implement (filtering, content control, etc.) a bit like trying to force car manufacturers to put speed limiters on all cars? (Which hasn't happened to the best of my knowledge, with the exception of heavy goods vehicles)

  4. Re:What's with the over dramatic /. titles again? by Black+Parrot · · Score: 2, Funny


    Just be glad he toned it down from the original "Ragnarok looms in MGM v. Grokster!!!"

    --
    Sheesh, evil *and* a jerk. -- Jade
  5. P2P use is mandatory by Anonymous Coward · · Score: 4, Interesting

    The internet (the whole danm thing) depends on technology called DNS, the Domain Name System. It allows people to type names of websites, rather than just IP addresses. DNS information about sites on the web are shared by way of a peer to peer network. A simple one, but that's how it's done. Killing off all p2p will effectively kill the internet. Tread carefully when you start trying to kill p2p. Also, since there are a lot of technologies that demand p2p (and there is no substitute), you had better not just go running around saying 'kill p2p, that will solve our problem', because it won't. Killing p2p won't solve the problem, but will harm technology requiring p2p.

    1. Re:P2P use is mandatory by greendoggg · · Score: 3, Insightful

      While I agree for the most part with what you're saying, I don't think the dns system qualifies as p2p. At least not any more than the www does. DNS requests work by disecting the hostname in question piece by piece. For example, www.slashdot.org. I dns query for this by joe user would start by querying the dns server (which is just a cache mainly) of their isp. This dns server would in turn query one of the root name servers (or whoever owns .org) for the dns server that controls slashdot.org. The isp dns server would then query the dns server that controls slashdot.org, and ask it if it knows the ip address for www.slashdot.org. Slashdot can either answer with an ip address or refer it to yet another dns server.

      This chain of events does not really seem at all like a p2p app. Sorry.

    2. Re:P2P use is mandatory by Alsee · · Score: 2, Insightful

      That is a very shortsighted view and the direct cause of very bad and very broken law.

      You do NOT decide a case and create law based on whether you are sympathetic to the current defendant or not. You cannot willy-nilly imprison or sue anyone you dislike and randomly ruling to protect anyone you do like. We live by the rule of law, and if you make a BAD rule so you can "get at" someone you dislike then that rule *is* going to equally apply to those you do like, such as the Domain Name System.

      The law is that the make of a product with substantial non-infringing use is not liable if someone else happens to commit infringment while using that product. That legalism was spelled out in the Betamax case when the MPAA tried to attack VCRs. Perhapse this phrase rings a bell: "the threat of videocassette recorders to the film industry was like that posed by the Boston Strangler to a woman alone".

      There are only two possibilites if you want P2P to be liable. You either have to reverse the Betamax ruling, with the rather insane sesult that VCR makers are afoul of the law, or you have to find some rational and consistant basis that this case is different from the VCR case. And that rational consistant basis would also need some magic way of distinguishign this case from some potential future case where someone DOES decide to sue the over DNS.

      You can't just rule at random against anything you dislike. Any basis for ruling against the Grokster side is almost certain to result in bad logic and bad precident and have the logical consequence of things like e-mail and DNS winding up liable as well.

      -

      --
      - - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
  6. DRM-Free Deposits by Baricom · · Score: 4, Insightful

    While MGM's position may be "balanced", there's always one thing that irks me about DRM: it makes it impossible to use in the public domain later.

    The very least a movie/music/software company must do to gain my approval is to deposit their materials to the Library of Congress unencumbered and DRM-free.

    Copyright is supposed to let creators make money on their work for a limited time in exchange for making it freely available later.

    Obligatory Disclaimer: IANAL

    1. Re:DRM-Free Deposits by ravenspear · · Score: 2, Insightful

      While MGM's position may be "balanced"

      It's obvious that you didn't RTFA, but how about at least reading TFS before commenting.

      The party considered to have a "balanced" position here is not MGM, it is the Video Software Dealers Association.

      I can guarantee you that MGM's brief will be considerably less tolerant of P2P.

    2. Re:DRM-Free Deposits by Rakshasa+Taisab · · Score: 2, Insightful

      Public domain doesn't exist anymore, so why does it matter?

      --
      - These characters were randomly selected.
    3. Re:DRM-Free Deposits by igrp · · Score: 2, Insightful
      While MGM's position may be "balanced", there's always one thing that irks me about DRM: it makes it impossible to use in the public domain later.

      I agree. However, there's a way around this - see this /. article from a few days ago. Basically, the Germans have a copyright system that's roughly comparable to what we have in the US. But there's a way to exempt certain entities that are supposed to serve the public. That's why the German national library (which is comparable to the Library of Congress in that it's sort of a national archive) can crack DRM'd audio, video or eBooks whenever the hell they feel like it.

      In essence, the legislature is saying "we recognize that protecting IP is important but only within reasonable limits".

      (I'm not saying that DRM is good. I think it's mostly not. I only mean to offer some perspective as to why this argument doesn't really hold any water.)

    4. Re:DRM-Free Deposits by brian0918 · · Score: 2, Funny

      Do we really want Catwoman and Sing The Hits of Ashlee Simpson sitting anywhere near The Thomas Jefferson Papers on the shelves of the Library of Congress?

  7. This is not good for Grokster by MC68000 · · Score: 2, Insightful

    The author's summary is correct, but as far as I know, the lawsuit was filed precisely because Grokster refused to incorporate any anti-piracy measures into its network. Grokster will become the next Napster if it does so.

    --
    E = m c^3 Don't drink and derive E = m c^3
    1. Re:This is not good for Grokster by Azi+Dahaka · · Score: 2, Informative

      I remember AudioGalaxy agreed and permitted the RIAA to flag certain artists/tracks so the files could not be downloaded.

      The RIAA discovered that it was not effective in the least. People would simply rename the files.

      Considering there is no way effective way (that I know of) to teach Grokster to identify content that should not be shared, I really don't see an alternative to creating a database of hashes or filename patterns, neither of which could stop the sharing.

      In other words, Grokster is likely refusing because they understand the futility and the difficulty of creating the easily-circumvented ban lists.

  8. ...Unbiased, indeed. by koko775 · · Score: 2, Insightful
    "One of the most successful legal distribution systems for sharing copies of copyrighted works ever created is the $24 billion home video entertainment industry. Its success is not measured merely in profits for the motion picture industry's copyright owners, but more importantly in its creation of an affordable way of enabling the entire family to enjoy a movie and of offering the choice of literally thousands of creative works for an evening's entertainment."

    Doubtful. It's neither affordable, nor convenient, nor the most successful distribution systems. It's just the most profitable. Compare iTunes and similar to buying CDs: there is a better, cheaper way, and I'm inclined, after reading this, to write it off -- "literally thousands" doesn't cut it -- "literally hundreds of thousands" or "literally millions" would be much more successful , and not impossible.
    1. Re:...Unbiased, indeed. by koko775 · · Score: 2, Insightful

      To clarify, it is *very* successful, but P2P is *more* successful. Within a few years, the entire world adopted P2P, very quickly, and at low to no cost. It is my opinion that a better distribution system would further their causes if they'd only have the balls to try something new.

  9. Re:What's with the over dramatic /. titles again? by ari_j · · Score: 2, Insightful

    No kidding. Briefs of amici curiae, or "amicus briefs," as they are called and as this one is, may urge the court to take a certain position, but they are hardly opening salvos. That'd be like saying that Switzerland's decision to remain neutral is the opening salvo in the next world war.

  10. Opening salvo? by bersl2 · · Score: 2, Funny

    "Enter letter number fire."
    Beep. Beep. Beep.
    [falling tone]
    [explosion]
    "Battleship hit!"

  11. Balanced? Hardly. by russotto · · Score: 2, Insightful

    There's a lot of verbiage in this brief, but what it comes down to is the VSDA is asking the court to overturn Betamax and rule for MGM, just in a way that doesn't hurt the VSDAs interests. That's a bad thing. There's no good that can come of this decision, only a lack of harm -- which is that Betamax is upheld and Grokster wins.

    The VSDA can probably see which way the wind's blowing and is trying to limit the damage to them.

  12. What is an anti-piracy measure? by tepples · · Score: 2

    the lawsuit was filed precisely because Grokster refused to incorporate any anti-piracy measures into its network.

    How can a piece of software determine whether a contract exists between the owner of a copyright and the distributor of a work on a network and if so, whether the terms of said contract permit each instance of distribution? Could you describe how a practical anti-piracy measure might work?

  13. Why the tech solution won't work by Anonymous Coward · · Score: 3, Insightful

    > should consider whether technologies may be used to reduce infringing uses without over-burdening the system provider

    This is an impossible goal. Here's why:

    Every automated solution for reducing copyright infringement over P2P has always had one thing in common: sniffing and filtering data at some level.

    Every data-sniffing solution has one of two basic architectural directions: centralized or distributed. If you pursue the centralized direction, you will rapidly encounter enormous scaling problems. If you pursue the distributed direction, you will rapidly encounter enormous management problems.

    These difficulties are tremendously compounded by the fact that neither the P2P developers, the ISPs, nor their customers have any natural incentive for doing any of this. The "incentive" can come only from the heavy fist of the law.

    The natural reluctance to deploy these unwanted, legally-mandated solutions will inevitably result in a "swiss cheese" environment. We know from past experience that massive numbers of people can learn very quickly where the holes are in the swiss chesse that allow them unfiltered access to the content they seek.

    And that's the best case scenario. A more realistic scenario will be something like a repeat of SDMI, which failed so miserably that the public wasn't even mildly inconvenienced by it.