Grokster Wins Big in Ninth Circuit

The Importance of writes "Grokster has won big in the 9th Circuit Court of Appeals. Read the decision: [PDF]. It is a very strong decision, basically bringing the Sony-Betamax decision into the modern age. Of course, the decision does make it clear that if Congress wants to change the law, they can (cough*INDUCE Act*cough). Read the whole thing, the actual opinion is only 18 single-column pages. See also, commentary from Jason Schultz, Ernest Miller, Cory Doctorow, and Ed Felten. And don't forget to thank EFF."

Re:The most overturned appeals court?

[DAldredge]

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

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

Summary of the case

[Jack Greenbaum]

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

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

Re:Explanation?

[andfarm]

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

the appeals court clearly "got it"

[The_Bagman]

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

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

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

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

Re:Explanation?

[The Slashdotted]

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

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

[Aneurysm9]

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

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

Re:WOW

[sangreal66]

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

Re:Explanation?

[Anonymous Coward]

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

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

Straight out of Larry Lessig's Book

[gvc]

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

Re:Conservatives and the 9th Circuit

[ewhac]

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

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

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

Schwab

Re:The most overturned appeals court?

[damiangerous]

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

Re:WOW

[Shadowlion]

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

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

On a side note...

[Dodger73]

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

Re:WOW

[studerby]

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

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

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

Re:Conservatives and the 9th Circuit

[Experiment 626]

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

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

Re:Conservatives and the 9th Circuit

[Anonymous Coward]

"-but somehow they must restrain from criticising the 9th, because "upset their faux populist image to come out so loudly in favor of the corporations that support them": strongly disagree You think that the movie/music/entertainment industry supports the conservatives in this country? try again They (the industry that you claim supports conservatives) give twice as much to the Democrats as to the Republicans. And look at the list of top 20 recipients. 3 Republicans, 17 Dems. If they weren't hedging their bets and giving to both Bush and Kerry, the total dolar figure would be even further skewed toward the Democrats."

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

Consider your link de-bunked.

Non-Commercial, Open Source, Legal Peer To Peer

[jbash]

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

Re:WOW

[UnknowingFool]

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

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

it only gets better...

[Rimbo]

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

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

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

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

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

[Anonymous Coward]

Just like Democrat Jack Valenti said.

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

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

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

Re:The most overturned appeals court?

[Anonymous Coward]

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

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

Re:WOW

[studerby]

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

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

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

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

You can see this for yourself in the Copyright Office's summary of the DMCA [loc.gov]

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

Re:WOW

[Demonspawn]

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

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

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

--Demonspawn

Re:WOW

[Breakfast Pants]

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

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

Re:WOW

[Anonymous Coward]

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

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

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

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

Re:WOW

[armando_wall]

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

You meant unauthorized music file swapping, I think.

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

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

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