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."

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.

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.

/. 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!

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: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.

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.

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: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:In percentage?

[cpt kangarooski]

It's volume. By percentage it's pretty average. Someone put together a scorecard of this for 2003 here [goldsteinhowe.com] 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: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/ [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)