The key sentence is from page 24: "...one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties." I think that could easily apply to more than just P2P companies.
But isn't the general rule that might be induced from this statement already well-settled? "If you market a product as useful in committing a crime, you're liable when your consumers commit said crime with said product." I thought that was obviously true - both realistically and legally.
No, it's true that the SC didn't make a clear statement... basically because: 1) It isn't possible, because the law doesn't explicitly phobit P2P techs, so they can't just ban them 2) It's not their job to make the laws.
But the laws they're ruling on already exist: see the "fair use" clause of the Copyright Act - 17 USC 107. Congress's decision to use vague language and open-ended terms in this statute tacitly authorizes the Supreme Court to flesh out the details - which, essentially, it declined to do here.
The question before the court was not "is a P2P company responsible for the copyright-infringing acts of its users." The question before the court was "Does Grokster get to benefit from the Betamax rule."
Curious - you've really just recast my question in different terms. It is assumed (and, presumably, well-known to all here at Slashdot) that P2P has a valid non-infringing use, and therefore can properly invoke the Betamax exception to avoid liability for the copyright-infringing acts of its users. Your question is the same as mine.
The court's job was to decide the case before it, namely MGM v. Grokster (not All Media Content Providers v. Every Possible P2P Application in Existence).
That's certainly the current trend (see also Bush v. Gore). But it's not a historical constant.
In resolving an illegal search-and-seizure issue in Mapp v. Ohio, the Court stated: "All evidence obtained by searches and seizures in violation of the Constitution is, by [the Fourth Amendment], inadmissible in a state court."
Only cases presenting rules of this scope - with the potential for real precedent - should receive Supreme Court certiorari. Anything smaller is merely a dispatch of a single case, which is really the job of county/circuit courts with oversight by appellates. When the Supreme Court operates in that context, it takes on the role of a trial court - only with the privilege of complete judicial finality.
Can you imagine today's Court making so clear and bold a statement as in Mapp? It can't even clearly state whether the Ten Commandments belong in a courthouse, without resorting to wishy-washy "intent" language. Accordingly, that scenario will be relitigated a hundred times, with case-specific factual inquiries. It's a complete waste of judicial resources, and it makes our body of law imprecise and unpredictable.
That's like me holding a gun in my hand, yelling out "I am not legally liable for this gun's misuse", pull the trigger, and kill somebody.
That's a poor analogy. In the latter case, the person speaking is also the person committing the crime - which is pointless, since you can't "disclaim" your own liability. That's different from a company making legitimate software available, but disavowing the liability of those who use it.
They may say in their decision that a device promoted as a copyright infringer is liable for suit from copyright owners, but that means that the Burden Of Proof now falls into the software writers to prove that that was never the purpose of the software.
No. How do you reach this conclusion?
For an intent crime, the burden of proof remains with the plaintiff. In order to prove libel, I have to show that you intentionally (or thereabouts) wrote false statements about me in order to damage my character. That's why you don't see too many libel suits.
As a result, this ruling puts the RIAA at a disadvantage: not only will it have to prove that Kazaa users violate copyright, but also that Kazaa intended that its users do so. Intent is always difficult to prove, so absent the clear-cut evidence available in the Grokster case, the RIAA and MPAA face an uphill battle.
A moral person isn't someone who makes a confusion of rash, instinctive decisions about right and wrong. Moral people struggle to figure out what to do, and often their decisions are qualified by the stuff they've considered along the way. It's called being a danged adult.
But it's a spectrum. On one side of nuance is extremism, the "with us or with the terrorists" binary logic that's hopelessly inapplicable. On the other side of nuance is wishy-washiness, where the rules are so prolific and qualified that they don't form a coherent body of reasoning.
The Supreme Court, for all the current right-wing majority's nascent authoritarian learnings, is not in the business of sweeping decisions that reach far beyond the cases brought before them.
Tell that to the Marbury v. Madison Court.;) There are plenty of instances where the Court found a compelling reason to issue a ruling broader than the facts of the case before it.
Here, I agree that the Court shouldn't have rewritten copyright law in order to dispose of this case. But my view is that they didn't answer the question before them, which is: "Should P2P software companies be liable for copyright-infringing acts by their users?" Instead, they chose to qualify the question in such a way that their answer won't be useful in the future. Aside from resolving this case, the Court didn't accomplish anything here.
The RIAA or MPAA could use accuse someone, say Bram Cohen of BitTorrent fame, that his product is intended to promote illegal distribution.
Sure, but they have to back up their claim with factual assertions. They can't just state, "Defendant Tunester's software is intended to promote copyright infringement." They have to state facts like, "Defendant Tunester published an advertisement in the May 12th edition of Wired reading, 'We are the new Napster!'"
Without any such evidence on hand, the RIAA and MPAA have only their conclusory statements - and will have their suits tossed out.
The Court opinion obviously focuses on the factual evidence of Grokster's and StreamCast's promotional activities, and of their success in inducing infringement. It does not assert or deny prima facie culpability for its users' acts by virtue of selling the software. And so, this decision doesn't really change or resolve anything - it just encourages P2P companies to be less overt about the uses of their software.
It has always been their policy to issue as narrowly worded a decision as can decide the case before them. It's not "theese days", it's the full history of the court.
That's not quite right. The Court has always resolved cases by ruling on the most limited basis available. For instance, if a case can be dismissed either by an in-depth review of the First Amendment or by relying on a procedural legal error, it always relies on the latter.
This is different than issuing the most limited ruling possible. Every single case can be resolved on case-specific factors: "We find this way only because the activity occurred on a Wednesday, and the plaintiff was wearing red socks, and the defendant's first name is Homer. We decline to extend this ruling to any other combination of factors."
The Court shouldn't be doing this. This is the highest court in the land - it shouldn't waste time resolving questions that apply solely to the case at bar. When it rules, it creates precedent on which lower courts rely to dispose of similar cases. That is its job.
And this is why this decision is pointless. The ruling: "If you're going to create a P2P company, don't promote it for the purpose of violating copyright." Company response: "OK, we won't. Now are we legally in the clear?" This question is still open.
By framing it as "the P2P question" and complaining about "weaseling", you are suggesting that you want either a unanimous "yes, any P2P is fine, even if it blatently encourages infringing uses" or a unanimous "no, P2P is horrible, even for solely legal uses".
Nope. Between the very specific question that the Court answered ("are Grokster and StreamCast legal?") and the overbroad question you suggest and criticize ("is P2P legal?") is the question that they should have addressed: Is a P2P company responsible for the copyright-infringing acts of its users?
That should have been the question answered in this case. The Court chose to sidestep it by stating, "If they actively encourage copyright infringement, then it's illegal." The problem is that we all knew that. The more important question remains unanswered.
Here's the problem. The Supremes didn't say "Grokster's advertising practice promotes the act of copyright infringement and any and all promotional materials and advertisements that do so are illegal." they said "making a piece of software that's marketed as a vehicle for copyright infringement is illegal."
Wrong, completely wrong. Read the majority opinion. It completely focuses on Grokster's goals in developing the software. The entire opinion focuses on their intent (and how well they succeeded in attaining it.)
It was unanimous, but not in the "any P2P software is illegal" sense, but in the "if you push your p2p software as a means for infringing copyright, you're just as guilty"
Exactly correct. It's a pretty limited decision, specific to Grokster's business model. The next P2P company that comes along just has to do a better job of advertising their product for the purpose of exchanging legally exchangeable files.
In other words, the SCt weaseled out of a definitive ruling on the P2P question. They're good at weaseling out of such decisions these days - quite a shame. Maybe the next P2P company targeted by the AAs will push the Court to a clear ruling... maybe not then, either.
In short, this is a limited legal victory for the P2P community.
More importantly, it's a good practical step for the P2P community. If these decisions remain long, drawn-out, and in dire need of follow-up cases and mounting legal fees, then perhaps the AAs will decide that this battle isn't worth fighting. They've already made some recent noise about starting their own P2P services.
If case law (and hence precedent) is no longer part of our system, then we will have *no way* of knowing what a court will do.
Sure - the courts would have to decide every single matter on a subjective, case-by-case basis. This is kind of what the public wants: a judiciary with blinders, one that simply looks at the facts and tries to be fair. The public wants high courtroom drama and the judicial wisdom of Solomon. Of course, there are hundreds of reasons why that's a horrid idea, but the public rarely makes sense.
The much worse trend is this hair-trigger tendency for Congress and the White House to demonize the entire court system. Proof by repetition is working; you hear the public muttering about "activist judges." It's possible that the upcoming Court nominations will try to ride this wave by appointing meek, deferential academics who are willing to pay homage to political trends. In other words, it would disempower the courts and effectively reduce their power as a check on the other branches.
It's kind of a scary time for the judiciary (and the public by extension, though they don't see it), but "scary" is just another kind of "interesting."
When this does get to Congress, and it probably will, you can count on your "beloved" Microsoft to put up the $ on our side. If you look closely at this issue, the MPAA and RIAA not only want to make Grokster et al liable, but also other software and hardware makers. You can guarantee Microsoft, Intel and the gang will not stand being liable for piracy.
I think you dangerously misperceive their positions.
First, they've already sided with the media studios in this debate. They have a good reason to do so: endlessly perfecting DRM-style technologies will be a cash cow of continued development for Microsoft and Intel. They can probably shake down the media industry for research support for a decade in pursuit of these technologies.
Second, both Microsoft and Intel benefit on the consumer side by joining the..AA's: if the studios finally wise up and start marketing iTunes-like services through DRM, Microsoft and Intel can bind these services tightly with their products as a new feature ("the new WinTunes - only for Windows Longhorn and the Intel Pentium 5 DRM Chip!") You may have noticed that they're both desperate for new ways to continue selling their products.) Notice, too, that they can engage in some barely-FTC-approved product tying this way - just as Apple has with iTunes.
Third, Microsoft is a software producer, and their products are hugely pirated. As evidenced by Product Activation etc., they've taken a heavy interest in protecting their own stuff. This whole case can be viewed as a struggle between the rights of content producers vs. content consumers - where do you think Microsoft views itself on that spectrum?
Fourth, Microsoft has simply no business justification for siding with Grokster. In Microsoft's eyes, P2P is probably just another potential market they haven't (yet) broached. They'll probably build some kind of DRM-protected P2P functionality into their junky Microsoft Messenger client, and force it onto everyone's desktop like they did in WinXP. So filing an opinion against "dangerous, unprotected P2P" or something would be just an early marketing campaign for their future products.
Don't get me wrong - I'm hugely on the side of Grokster here - but we have to be realistic about these likelihoods.
But if it works like normal Perl, that one-line script has a legitimate purpose. In addition to transmitting a file over HTTP, it computes the MD5 hashcode of the file and returns it via hard-coded secret variable $_%A12. And if a hashtable is sent instead of a file, it will store the zipped hashtable to disk under the filename specified in hidden variable $#96B.
Perl is almost as obfuscated and illogical as the RIAA's arguments about how P2P is harming them.
Do you suppose it will hurt the executive officers? They're famous now! Check out Carly Fiorina who lead HP to a 50% reduction in value. They paid her 45 million just to go away, prompting an immediate 7% spike in HP stock. Her punishment? Serious consideration for the job of World Bank President!
Carly's case is a little different. People saw her as ineffective, but not necessarily incompetent. HP didn't go completely balls-up in the process; it's still tooling along, with strong sales in printers and (combined with Toshiba) a good share of desktop/notebook sales. Summary: lukewarm.
SCO is different. SCO exploded. A few years ago, it was a respected distro and a friend of the Linux community; now it's got Microsoft's reputation and BE's user base. Summary: an undeniable and very public failure.
I have to think that these scenarios have different results on the CEOs' future prospects. Sure, they walk away with a boatload of cash - that's typical - but where they go from here will be interesting to see.
I still feel kinda bad for the SCO employees who had nothing to do with the litigation and have faced an extra hard time getting employment after leaving because "They were there".
First, they've had ample notice that the company was going down the tubes, so they should have been dusting off their resumes a year ago.
Second, I doubt that SCO's outcome will adversely any non-manager employee. Presumably, the HR reps/slave traders in the industry can tell the difference between an engineer and a corporate officer. (And, by that same token, I hope the business leaders over at SCO are seen as pariahs for the next decade.)
While I agree with you, I think it's best to use open arms etc. It is good for us on many levels for companies to do this, ulteria motives or not.
But the benefit is undercut by the uncertainty. SCO was considered a hero of the Linux industry at one time (even though it seems like a long time ago, in a galaxy far away.)
So what's better than a promise? How about a license? Computer Associates should take the extra step and, for a nominal fee, irrevocably license their patents (with the opportunity to sublicense) to Linus Torvalds.
But in true geek fashion, I must note one great advantage of the "buttery paws" scenario over the "strapped to the back" model:
The latter scenario features a competition between two events that each want to win. If either one actually does win, you're just disappointing the other. Not an "impossibility," just a less-than-optimal scenario (of course, the "optimal" scenario is impossible, unless said cat is extremely flexible.)
In the buttery-paws model, however, you have two possibilities - one of which must be selected, but both of which are impossible. This is a much better perpetual-motion machine, since, presumably, gravity pushes the system toward one of the two results, and each must actively grapple with the other to avoid being selected.;)
Heh. No reason to be embarrassed about your background. True, Slashdot people are hostile to attorneys - the only way to fix that is to show up here and demonstrate that we aren't hideous trolls (well, at least some of us aren't.;) )
Well, it seems likely that they'd be able to get a temporary restraining order that would ripen into a default judgment at some point in time.
But that's my point - as you acknowledge, the whole courtroom scenario is basically never going to occur. The rights are clear, the defendants have no significant business, and by appearing all the defendants would accomplish is to make themselves convenient targets of arrest for copyright theft. A default judgment against a MAME ROM seller is about as effective as a default judgment against a Nigerian scam artist.
So we can safely ignore the courtroom scenario, since it's never going to occur.
the only thing the trademark does is, maybe, convince ISPs based on a mere letter (rather than court order) to avail themselves of the safe harbor provisions of the DMCA to take down a site or auction.... The only possible advantage I see in the trademark hocus pocus is its decidedly international flavor.
Ah, but that would presume the ISPs have some independent judgment in the matter (legal or otherwise.) I don't know this firsthand (since I don't do copyright enforcement - I think I'd rather be beaten with a copy of the MPEP), but anecdotes suggest that ISPs have a kneejerk response to cease-and-desist notices; they issue a warning on the first notice, and close the account on the second. I don't think they're being stupid or lazy - I presume that ISPs are flooded with infringement complaints, and that it's just not worth their time to investigate all of them.
So "trademark violation" is just as good as "copyright violation." They're not going to evaluate legal issues like standing, because they're not evaluating anything.The elegant way to do this would have been to negotiate a license of the sort that would convey standing on them for such actions.
Yeah, that'd be one way. But they need not even have done that - simply indicating their intentions up front would've done the trick. Because of how it fell out, this looks like sneaky-lawyer strategery (to borrow a term from our CIC.)
It'd be fun to see one of UltraCade's lawyers put in an appearance here.:-)
:lol: Me too, but I'm not exactly expecting it. (And it wouldn't be appropriate. You and I can BS about this all we want, because nothing we write in this off-handed discussion can prejudice a client.)
The only person who has standing to bring a copyright violation claim is the copyright holder. UltraCade's lawyers must believe that, in order to be successful against those who are competing against it unfairly, they need standing to sue. Hence, registering the name makes a certain amount of sense.
Well, civil procedure issues are probably moot, because the alleged infringers are not interested in having the legality of their "businesses" resolved. Any "company" that vends cabinets loaded with MAME and 4,000 ROMs is probably not going to appear in court. (If it came to that, MAME would have standing - and much stronger grounds - due to infringement of its own copyright.)
This is strictly a police issue: how can we (the legitimate emulation community, including [for the moment] UltraCade) get their auctions canceled, their webspace yanked, their PayPal accounts closed, etc.? And this has nothing to do with trademark law. In fact, bringing in this unrelated body of law only confuses the issue.
The UltraCade lawyers aren't particularly sneaky or clever. They gambled that they couldn't be effective any other way, and apparently ignored the risk of community/market backlash.
This highlights a key point: If UltraCade legitimately wanted to use the MAME trademark as it alleges, why didn't they bring this up with MAME before now? If I wanted to be a guardian angel and spend resources protecting your rights, I think I might mention that plan to you at some point. The post-hoc nature of this justification severely limits its credibility.
In other words: If he gets the trademark, he wins; if someone stands up to stop him, he wins.
Do you mean that the publicity created for UltraCade by having someone challenge its trademark application will be beneficial - the old "all publicity is good publicity" credo? That tactic hasn't really worked out well for SCO...
Our goal in filing the trademark for the name M.A.M.E. was simply to give us leverage against those companies that promote and sell machines with M.A.M.E. installed on it, and more importantly, provide their customers with the means to illegally obtain the ROMs. This doesn't help our sales of our products.
You're right - that doesn't help your sales. What would help your sales is having a tool to exclude anyone who wants to sell MAME cabinets from the market, even (especially) those that don't include MAME or infringe any copyrights.
If this was really your goal, do you think you might have mentioned this goal to the MAME team before filing an application claiming the MAME trademark? The fact that you didn't cuts some credibility out of your proffered rationale.
Are your sure the PTO has the same policy for trademarks that they do with patents?
That's a good point, but the ansewr is yes, they do. By virtue of undergoing an examination prior to registration, a trademark comes with a presumption of validity. Now, it's not quite as strong as for patents - there's a public opposition period prior to registration, and the presumption is weaker for a certain amount of time after registration. But the down side is that after five years of registration, the trademark becomes virtually invulnerable to attack.
This reflects one of the neat and good things about trademarks: it's much more practical and pragmatic than copyright and patent law. Trademark owners have to actually use the mark to retain rights to it, and trademark strength and enforcement are closely tied to market realities. Copyright and patent are much more theoretical and abstract, and the court-enforcible rights sometimes differ (quite a lot!) from the state's goals in granting such monopolies.
I think the wide difference in focus arises from the constitutional mandates for the latter systems - and as we've seen, anything touching the Constitution get swamped in a morass of fuzzy-headed jurisprudence.;)
Wouldn't he then be defrauding the MAME community by saying, fraudulently, "I'm MAME"?
Very astute. This is effectively what UltraCade is doing by trying to trademark the term MAME.
Now, I am definitely not nearly as corporation-paranoid as even the average Slashdot member - I would usually take the company at face value in such statements. The problem here is that the stated goal has nothing to do with the stated action. Trademarking MAME will not help UltraCade bust competitors, for several reasons:
The proper grounds for evicting illegal manufacturers is copyright infringement, not trademark infringement. And that's very easy to do, since the "official" channels of Internet policing (courts and ISPs) are very pro-copyright - a simple email to the site hosting the content is enough to get some hosting yanked. (In fact, this is exactly how the MAME community has policed commercial sales of MAME [with ROMs] on eBay - it's a routine occurrence, and the "cease-and-desist" notice is efficient and effective.) Why anyone thinks trademark infringement would provide more leverage than copyright infringement is something of a mystery.
The MAME trademark will only be effective in the U.S. The world isn't nearly as unified about the enforcement of trademark law as they are for copyright (and patent) law. Even trying to enforce the trademark in Canada is likely to be difficult.
Any illegal-software-sales company that wants to avoid a trademark claim for using MAME can simply... uh... not use the MAME name in its adverts. Most n00b-idiot purchasers of such hardware don't know what "MAME" is, anyway. Their attention latches onto "4,000 arcade games in cabinet for $200!" - they don't know the term "MAME" anyway.
For these reasons, I must doubt UltraCade's stated reason for seeking a trademark on the term MAME. So what's really going on here? More likely, and reading between the lines here, UltraCade wants to block anyone else from selling a cabinet bearing the word "MAME" - even if it's solely a cabinet (with no emulation software of any kind embedded.) This is their true "competition," and it has nothing to do with copyright. There's nothing illegal about selling a hunk of wood and circuitry... unless, of course, there's a trademark issue. This is likely their goal.
Hmm, a dodgy company looking to frustrate its own market for its own gain - could the emulation community be seeing the emergence of is own SCO?
As a final note, I'm curious whether this inaccurate attempt to monopolize a market by laying an inaccurate trademark claim might violate the Sherman Antitrust Act.
(IAAL, by the way - the "intellectual property" kind.)
They're children. Surely you want to track them. It's like the big complaints people have about having cameras in schools and people monitoring them. I tell ya, when I went to school we could have done with some of those cameras. Would have put a quick stop to all the anti-social lord-of-the-flies-esq behaviour that characterizes the school years of most kids.
Shhh - be careful with those unpopular opinions. I posted five comments in this thread basically arguing this point, citing benefits and addressing problems. But since it's not a popular opinion at Slashdot, four of 'em got modded down as "overrated."
Slashdot Mirror
But isn't the general rule that might be induced from this statement already well-settled? "If you market a product as useful in committing a crime, you're liable when your consumers commit said crime with said product." I thought that was obviously true - both realistically and legally.
- David Stein
But the laws they're ruling on already exist: see the "fair use" clause of the Copyright Act - 17 USC 107. Congress's decision to use vague language and open-ended terms in this statute tacitly authorizes the Supreme Court to flesh out the details - which, essentially, it declined to do here.
- David Stein
Curious - you've really just recast my question in different terms. It is assumed (and, presumably, well-known to all here at Slashdot) that P2P has a valid non-infringing use, and therefore can properly invoke the Betamax exception to avoid liability for the copyright-infringing acts of its users. Your question is the same as mine.
The court's job was to decide the case before it, namely MGM v. Grokster (not All Media Content Providers v. Every Possible P2P Application in Existence).
That's certainly the current trend (see also Bush v. Gore). But it's not a historical constant.
In resolving an illegal search-and-seizure issue in Mapp v. Ohio, the Court stated: "All evidence obtained by searches and seizures in violation of the Constitution is, by [the Fourth Amendment], inadmissible in a state court."
Only cases presenting rules of this scope - with the potential for real precedent - should receive Supreme Court certiorari. Anything smaller is merely a dispatch of a single case, which is really the job of county/circuit courts with oversight by appellates. When the Supreme Court operates in that context, it takes on the role of a trial court - only with the privilege of complete judicial finality.
Can you imagine today's Court making so clear and bold a statement as in Mapp? It can't even clearly state whether the Ten Commandments belong in a courthouse, without resorting to wishy-washy "intent" language. Accordingly, that scenario will be relitigated a hundred times, with case-specific factual inquiries. It's a complete waste of judicial resources, and it makes our body of law imprecise and unpredictable.
- David Stein
That's a poor analogy. In the latter case, the person speaking is also the person committing the crime - which is pointless, since you can't "disclaim" your own liability. That's different from a company making legitimate software available, but disavowing the liability of those who use it.
They may say in their decision that a device promoted as a copyright infringer is liable for suit from copyright owners, but that means that the Burden Of Proof now falls into the software writers to prove that that was never the purpose of the software.
No. How do you reach this conclusion?
For an intent crime, the burden of proof remains with the plaintiff. In order to prove libel, I have to show that you intentionally (or thereabouts) wrote false statements about me in order to damage my character. That's why you don't see too many libel suits.
As a result, this ruling puts the RIAA at a disadvantage: not only will it have to prove that Kazaa users violate copyright, but also that Kazaa intended that its users do so. Intent is always difficult to prove, so absent the clear-cut evidence available in the Grokster case, the RIAA and MPAA face an uphill battle.
- David Stein
But it's a spectrum. On one side of nuance is extremism, the "with us or with the terrorists" binary logic that's hopelessly inapplicable. On the other side of nuance is wishy-washiness, where the rules are so prolific and qualified that they don't form a coherent body of reasoning.
The Supreme Court, for all the current right-wing majority's nascent authoritarian learnings, is not in the business of sweeping decisions that reach far beyond the cases brought before them.
Tell that to the Marbury v. Madison Court. ;) There are plenty of instances where the Court found a compelling reason to issue a ruling broader than the facts of the case before it.
Here, I agree that the Court shouldn't have rewritten copyright law in order to dispose of this case. But my view is that they didn't answer the question before them, which is: "Should P2P software companies be liable for copyright-infringing acts by their users?" Instead, they chose to qualify the question in such a way that their answer won't be useful in the future. Aside from resolving this case, the Court didn't accomplish anything here.
- David Stein
Sure, but they have to back up their claim with factual assertions. They can't just state, "Defendant Tunester's software is intended to promote copyright infringement." They have to state facts like, "Defendant Tunester published an advertisement in the May 12th edition of Wired reading, 'We are the new Napster!'"
Without any such evidence on hand, the RIAA and MPAA have only their conclusory statements - and will have their suits tossed out.
The Court opinion obviously focuses on the factual evidence of Grokster's and StreamCast's promotional activities, and of their success in inducing infringement. It does not assert or deny prima facie culpability for its users' acts by virtue of selling the software. And so, this decision doesn't really change or resolve anything - it just encourages P2P companies to be less overt about the uses of their software.
- David Stein
That's not quite right. The Court has always resolved cases by ruling on the most limited basis available. For instance, if a case can be dismissed either by an in-depth review of the First Amendment or by relying on a procedural legal error, it always relies on the latter.
This is different than issuing the most limited ruling possible. Every single case can be resolved on case-specific factors: "We find this way only because the activity occurred on a Wednesday, and the plaintiff was wearing red socks, and the defendant's first name is Homer. We decline to extend this ruling to any other combination of factors."
The Court shouldn't be doing this. This is the highest court in the land - it shouldn't waste time resolving questions that apply solely to the case at bar. When it rules, it creates precedent on which lower courts rely to dispose of similar cases. That is its job.
And this is why this decision is pointless. The ruling: "If you're going to create a P2P company, don't promote it for the purpose of violating copyright." Company response: "OK, we won't. Now are we legally in the clear?" This question is still open.
- David Stein
Nope. Between the very specific question that the Court answered ("are Grokster and StreamCast legal?") and the overbroad question you suggest and criticize ("is P2P legal?") is the question that they should have addressed: Is a P2P company responsible for the copyright-infringing acts of its users?
That should have been the question answered in this case. The Court chose to sidestep it by stating, "If they actively encourage copyright infringement, then it's illegal." The problem is that we all knew that. The more important question remains unanswered.
- David Stein
Here's the problem. The Supremes didn't say "Grokster's advertising practice promotes the act of copyright infringement and any and all promotional materials and advertisements that do so are illegal." they said "making a piece of software that's marketed as a vehicle for copyright infringement is illegal."
Wrong, completely wrong. Read the majority opinion. It completely focuses on Grokster's goals in developing the software. The entire opinion focuses on their intent (and how well they succeeded in attaining it.)
- David Stein
Exactly correct. It's a pretty limited decision, specific to Grokster's business model. The next P2P company that comes along just has to do a better job of advertising their product for the purpose of exchanging legally exchangeable files.
In other words, the SCt weaseled out of a definitive ruling on the P2P question. They're good at weaseling out of such decisions these days - quite a shame. Maybe the next P2P company targeted by the AAs will push the Court to a clear ruling... maybe not then, either.
In short, this is a limited legal victory for the P2P community.
More importantly, it's a good practical step for the P2P community. If these decisions remain long, drawn-out, and in dire need of follow-up cases and mounting legal fees, then perhaps the AAs will decide that this battle isn't worth fighting. They've already made some recent noise about starting their own P2P services.
- David Stein
Sure - the courts would have to decide every single matter on a subjective, case-by-case basis. This is kind of what the public wants: a judiciary with blinders, one that simply looks at the facts and tries to be fair. The public wants high courtroom drama and the judicial wisdom of Solomon. Of course, there are hundreds of reasons why that's a horrid idea, but the public rarely makes sense.
The much worse trend is this hair-trigger tendency for Congress and the White House to demonize the entire court system. Proof by repetition is working; you hear the public muttering about "activist judges." It's possible that the upcoming Court nominations will try to ride this wave by appointing meek, deferential academics who are willing to pay homage to political trends. In other words, it would disempower the courts and effectively reduce their power as a check on the other branches.
It's kind of a scary time for the judiciary (and the public by extension, though they don't see it), but "scary" is just another kind of "interesting."
- David Stein
I think you dangerously misperceive their positions.
First, they've already sided with the media studios in this debate. They have a good reason to do so: endlessly perfecting DRM-style technologies will be a cash cow of continued development for Microsoft and Intel. They can probably shake down the media industry for research support for a decade in pursuit of these technologies.
Second, both Microsoft and Intel benefit on the consumer side by joining the ..AA's: if the studios finally wise up and start marketing iTunes-like services through DRM, Microsoft and Intel can bind these services tightly with their products as a new feature ("the new WinTunes - only for Windows Longhorn and the Intel Pentium 5 DRM Chip!") You may have noticed that they're both desperate for new ways to continue selling their products.) Notice, too, that they can engage in some barely-FTC-approved product tying this way - just as Apple has with iTunes.
Third, Microsoft is a software producer, and their products are hugely pirated. As evidenced by Product Activation etc., they've taken a heavy interest in protecting their own stuff. This whole case can be viewed as a struggle between the rights of content producers vs. content consumers - where do you think Microsoft views itself on that spectrum?
Fourth, Microsoft has simply no business justification for siding with Grokster. In Microsoft's eyes, P2P is probably just another potential market they haven't (yet) broached. They'll probably build some kind of DRM-protected P2P functionality into their junky Microsoft Messenger client, and force it onto everyone's desktop like they did in WinXP. So filing an opinion against "dangerous, unprotected P2P" or something would be just an early marketing campaign for their future products.
Don't get me wrong - I'm hugely on the side of Grokster here - but we have to be realistic about these likelihoods.
- David Stein
Perl is almost as obfuscated and illogical as the RIAA's arguments about how P2P is harming them.
- David Stein
Carly's case is a little different. People saw her as ineffective, but not necessarily incompetent. HP didn't go completely balls-up in the process; it's still tooling along, with strong sales in printers and (combined with Toshiba) a good share of desktop/notebook sales. Summary: lukewarm.
SCO is different. SCO exploded. A few years ago, it was a respected distro and a friend of the Linux community; now it's got Microsoft's reputation and BE's user base. Summary: an undeniable and very public failure.
I have to think that these scenarios have different results on the CEOs' future prospects. Sure, they walk away with a boatload of cash - that's typical - but where they go from here will be interesting to see.
- David Stein
DUN DUN DUN dun DUN-DUN dun DUN-DUN...
- David Stein
First, they've had ample notice that the company was going down the tubes, so they should have been dusting off their resumes a year ago.
Second, I doubt that SCO's outcome will adversely any non-manager employee. Presumably, the HR reps/slave traders in the industry can tell the difference between an engineer and a corporate officer. (And, by that same token, I hope the business leaders over at SCO are seen as pariahs for the next decade.)
- David Stein
But the benefit is undercut by the uncertainty. SCO was considered a hero of the Linux industry at one time (even though it seems like a long time ago, in a galaxy far away.)
So what's better than a promise? How about a license? Computer Associates should take the extra step and, for a nominal fee, irrevocably license their patents (with the opportunity to sublicense) to Linus Torvalds.
- David Stein
But in true geek fashion, I must note one great advantage of the "buttery paws" scenario over the "strapped to the back" model:
The latter scenario features a competition between two events that each want to win. If either one actually does win, you're just disappointing the other. Not an "impossibility," just a less-than-optimal scenario (of course, the "optimal" scenario is impossible, unless said cat is extremely flexible.)
In the buttery-paws model, however, you have two possibilities - one of which must be selected, but both of which are impossible. This is a much better perpetual-motion machine, since, presumably, gravity pushes the system toward one of the two results, and each must actively grapple with the other to avoid being selected. ;)
- David Stein
Heh. No reason to be embarrassed about your background. True, Slashdot people are hostile to attorneys - the only way to fix that is to show up here and demonstrate that we aren't hideous trolls (well, at least some of us aren't. ;) )
Well, it seems likely that they'd be able to get a temporary restraining order that would ripen into a default judgment at some point in time.
But that's my point - as you acknowledge, the whole courtroom scenario is basically never going to occur. The rights are clear, the defendants have no significant business, and by appearing all the defendants would accomplish is to make themselves convenient targets of arrest for copyright theft. A default judgment against a MAME ROM seller is about as effective as a default judgment against a Nigerian scam artist.
So we can safely ignore the courtroom scenario, since it's never going to occur.
the only thing the trademark does is, maybe, convince ISPs based on a mere letter (rather than court order) to avail themselves of the safe harbor provisions of the DMCA to take down a site or auction. ... The only possible advantage I see in the trademark hocus pocus is its decidedly international flavor.
Ah, but that would presume the ISPs have some independent judgment in the matter (legal or otherwise.) I don't know this firsthand (since I don't do copyright enforcement - I think I'd rather be beaten with a copy of the MPEP), but anecdotes suggest that ISPs have a kneejerk response to cease-and-desist notices; they issue a warning on the first notice, and close the account on the second. I don't think they're being stupid or lazy - I presume that ISPs are flooded with infringement complaints, and that it's just not worth their time to investigate all of them.
So "trademark violation" is just as good as "copyright violation." They're not going to evaluate legal issues like standing, because they're not evaluating anything. The elegant way to do this would have been to negotiate a license of the sort that would convey standing on them for such actions.
Yeah, that'd be one way. But they need not even have done that - simply indicating their intentions up front would've done the trick. Because of how it fell out, this looks like sneaky-lawyer strategery (to borrow a term from our CIC.)
It'd be fun to see one of UltraCade's lawyers put in an appearance here. :-)
- David Stein
Well, civil procedure issues are probably moot, because the alleged infringers are not interested in having the legality of their "businesses" resolved. Any "company" that vends cabinets loaded with MAME and 4,000 ROMs is probably not going to appear in court. (If it came to that, MAME would have standing - and much stronger grounds - due to infringement of its own copyright.)
This is strictly a police issue: how can we (the legitimate emulation community, including [for the moment] UltraCade) get their auctions canceled, their webspace yanked, their PayPal accounts closed, etc.? And this has nothing to do with trademark law. In fact, bringing in this unrelated body of law only confuses the issue.
The UltraCade lawyers aren't particularly sneaky or clever. They gambled that they couldn't be effective any other way, and apparently ignored the risk of community/market backlash.
This highlights a key point: If UltraCade legitimately wanted to use the MAME trademark as it alleges, why didn't they bring this up with MAME before now? If I wanted to be a guardian angel and spend resources protecting your rights, I think I might mention that plan to you at some point. The post-hoc nature of this justification severely limits its credibility.
- David Stein
Do you mean that the publicity created for UltraCade by having someone challenge its trademark application will be beneficial - the old "all publicity is good publicity" credo? That tactic hasn't really worked out well for SCO...
- David Stein
You're right - that doesn't help your sales. What would help your sales is having a tool to exclude anyone who wants to sell MAME cabinets from the market, even (especially) those that don't include MAME or infringe any copyrights.
If this was really your goal, do you think you might have mentioned this goal to the MAME team before filing an application claiming the MAME trademark? The fact that you didn't cuts some credibility out of your proffered rationale.
- David Stein
That's a good point, but the ansewr is yes, they do. By virtue of undergoing an examination prior to registration, a trademark comes with a presumption of validity. Now, it's not quite as strong as for patents - there's a public opposition period prior to registration, and the presumption is weaker for a certain amount of time after registration. But the down side is that after five years of registration, the trademark becomes virtually invulnerable to attack.
This reflects one of the neat and good things about trademarks: it's much more practical and pragmatic than copyright and patent law. Trademark owners have to actually use the mark to retain rights to it, and trademark strength and enforcement are closely tied to market realities. Copyright and patent are much more theoretical and abstract, and the court-enforcible rights sometimes differ (quite a lot!) from the state's goals in granting such monopolies.
I think the wide difference in focus arises from the constitutional mandates for the latter systems - and as we've seen, anything touching the Constitution get swamped in a morass of fuzzy-headed jurisprudence. ;)
- David Stein
Very astute. This is effectively what UltraCade is doing by trying to trademark the term MAME.
Now, I am definitely not nearly as corporation-paranoid as even the average Slashdot member - I would usually take the company at face value in such statements. The problem here is that the stated goal has nothing to do with the stated action. Trademarking MAME will not help UltraCade bust competitors, for several reasons:
- The proper grounds for evicting illegal manufacturers is copyright infringement, not trademark infringement. And that's very easy to do, since the "official" channels of Internet policing (courts and ISPs) are very pro-copyright - a simple email to the site hosting the content is enough to get some hosting yanked. (In fact, this is exactly how the MAME community has policed commercial sales of MAME [with ROMs] on eBay - it's a routine occurrence, and the "cease-and-desist" notice is efficient and effective.) Why anyone thinks trademark infringement would provide more leverage than copyright infringement is something of a mystery.
- The MAME trademark will only be effective in the U.S. The world isn't nearly as unified about the enforcement of trademark law as they are for copyright (and patent) law. Even trying to enforce the trademark in Canada is likely to be difficult.
- Any illegal-software-sales company that wants to avoid a trademark claim for using MAME can simply... uh... not use the MAME name in its adverts. Most n00b-idiot purchasers of such hardware don't know what "MAME" is, anyway. Their attention latches onto "4,000 arcade games in cabinet for $200!" - they don't know the term "MAME" anyway.
For these reasons, I must doubt UltraCade's stated reason for seeking a trademark on the term MAME. So what's really going on here? More likely, and reading between the lines here, UltraCade wants to block anyone else from selling a cabinet bearing the word "MAME" - even if it's solely a cabinet (with no emulation software of any kind embedded.) This is their true "competition," and it has nothing to do with copyright. There's nothing illegal about selling a hunk of wood and circuitry... unless, of course, there's a trademark issue. This is likely their goal.Hmm, a dodgy company looking to frustrate its own market for its own gain - could the emulation community be seeing the emergence of is own SCO?
As a final note, I'm curious whether this inaccurate attempt to monopolize a market by laying an inaccurate trademark claim might violate the Sherman Antitrust Act.
(IAAL, by the way - the "intellectual property" kind.)
- David Stein
Shhh - be careful with those unpopular opinions. I posted five comments in this thread basically arguing this point, citing benefits and addressing problems. But since it's not a popular opinion at Slashdot, four of 'em got modded down as "overrated."
- David Stein