MGM v. Grokster: Here's Why P2P is Valuable

Briefs defending Grokster's right to exist were filed yesterday in MGM v. Grokster, from Intel, Creative Commons [PDF], and many others. Among them, 17 computer science professors laid out the case for P2P, beginning with principles: "First, the United States' description of the Internet's design is wrong. P2P networks are not new developments in network design, but rather the design on which the Internet itself is based." Pointedly, the EFF compares this case's arguments to those made over 20 years ago in the Betamax case, which established the public's right to use video-copying technology, because of its "substantial non-infringing uses," even though many used videotape to infringe copyright. We'll soon see whether that right will extend to peer-to-peer software: the Supreme Court takes this up on March 29th.

Comments

Re:I'm not confident

[kidgenius]

No, it's not the right to execute children. 44% said that is ok to execute people who committed these crimes as children. There is a huge difference. In Arizona, there are 4 inmates who now won't be executed. They all are now in their late 20's and early 30's. They are incarcerated for crimes they committed when they were not yet 18. I am not advocating capital punishment at all, but I do think that you should understand what was decided.

From the Brief

[The-Perl-CD-Bookshel]

I believe that the most compelling argument made in the actual brief (the first link) is,

"Second, amici address assertions that checking for infringement should be built into network design. On the contrary, certain functionality (such as using filters) should not be done at the network level. To order network designers to add functionality to the network to avoid liability is to force significant inefficiency into network design. Because leaving out such functionality may represent good engineering design, no negative inference regarding intent should be drawn if a designer chooses not to add this functionality."

I was pointed there by Ed Felton in a response post on the brief's abstract page on Freedom to Tinker,

"I'm curious what you think of the corresponding section of the brief (Section II, starting on page 6), which makes the argument at much greater length."

I love getting some free Ivy League insight (as an aside, I go to Rutgers where we are always using information from our Ivy League friends).

Re:In order to win this

[cpt kangarooski]

No, they need merely show that P2P is capable of significant noninfringing uses. Actual uses are not required. It's trivial to meet that standard; this case is about changing the standard.

Read more of the briefs, please

[Jim Tyre]

I'm glad to see that folks are talking about the CS Profs' brief -- after all, I'm the lead lawyer on that brief. '-)

But I would suggest strongly that you look at many of the other briefs available on EFF's site. Respondents' Brief (the one by StreamCast and Grokster) is the most important, and there are many high quality amicus briefs. Eben Moglen, who wrote on behalf of FSF, has some great lines in his; and there are many other excellent ones.

Probably just another milestone.

[abb3w]

Are p2p networks covered by our right to gather? Our right to associate? Our right to privacy? Which amendments will apply to the laws being challenged?

As I understand it, the primary challenge is entirely interpretation of current copyright law, with its foundation in Article 1, section 8. To grossly oversimplify (and IANAL), MGM &c claim the technology is fundamentally for copyright violation, and that they should be able to collect damages from the Grokkers for the infringements; the Grokkers say it has substantial non-infringing uses, and that the actions of the users are the fault of the users, and go collect money from them.

The proposed legislation to ban peer to peer would need to be challenged on 1st amendment grounds, but that's not the case before the court. MGM &c are not directly challenging the legality of the product, but merely claiming the maker has responsibility for its consequential use. It may touch on the issues, but that's not where the focus lies.

Re:Is it legal to record off the radio?

[blamanj]

First, the original poster didn't say whether it was recording for collection or for time-shifting. However, it shouldn't matter, because the District Court decision (which was the one appealed to the Supreme Court) found the following:

The District Court concluded that noncommercial home use recording of material broadcast over the
public airwaves was a fair use of copyrighted works and did not constitute copyright infringement. It
emphasized the fact that the material was broadcast free to the public at large, the noncommercial
character of the use, and the private character of the activity conducted entirely within the home.
Moreover, the court found that the purpose of this use served the public interest in increasing access to
television programming, an interest that "is consistent with the First Amendment policy of providing the
fullest possible access to information through the public airwaves. Columbia Broadcasting System, Inc. v.
Democratic National Committee, 412 U.S. 94, 102." Id., at 454. n8 Even when an entire copyrighted work
was recorded, [p.426] the District Court regarded the copying as fair use "because there is no
accompanying reduction in the market for 'plaintiff's original work.'"