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The Courts Government News

High Court Agrees to Hear File-Sharing Dispute 297

Posted by michael from the two-paths-diverged-in-a-wood dept.
stkpogo pastes: "The Supreme Court agreed Friday to consider whether two Internet file-sharing services may be held responsible for their customers' online swapping of copyrighted songs and movies. Justices will review a lower ruling in favor of Grokster Ltd. and StreamCast Networks Inc., which came as a blow to recording companies and movie studios seeking to stop the illegal distribution of their works." Grokster won in the lower courts, but the studios are appealing. This case, when finally decided, will be equivalent to the Betamax case 20 years ago which ensured that VCRs were legal.
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High Court Agrees to Hear File-Sharing Dispute More

High Court Agrees to Hear File-Sharing Dispute

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  • The farce of "loss" due to file sharing (Score:5, Insightful)

    by Anonymous Coward on Saturday December 11, 2004 @12:07AM (#11058331)
    The owners of copyrighted material often say they suffer "harm" and "economic loss" resulting from illegal copying. Like most arguments put forth by copyright enthusiasts, it holds little water - for several reasons:

    The claim is mostly inaccurate because it presupposes that the copying individual would otherwise have bought a copy from the publisher. That is occasionally true, but more often false; and when it is false, the claimed loss does not occur.

    The claim is partly misleading because the word "loss" suggests events of a very different nature--events in which something they have is taken away from them. For example, if the bookstore's stock of books were burned, or if the money in the register got torn up, that would really be a "loss." We generally agree it is wrong to do these things to other people. But when your friend avoids the need to buy a copy of a book, the bookstore and the publisher do not lose anything they had. A more fitting description would be that the bookstore and publisher get less income than they might have got. The same consequence can result if your friend decides to play bridge instead of reading a book. In a free market system, no business is entitled to cry "foul" just because a potential customer chooses not to deal with them.

    The claim is begging the question because the idea of "loss" is based on the assumption that the publisher "should have" got paid. That is based on the assumption that copyright exists and prohibits individual copying. But that is just the issue at hand: what should copyright cover? If the public decides it can share copies, then the publisher is not entitled to expect to be paid for each copy, and so cannot claim there is a "loss" when it is not. In other words, the "loss" comes from the copyright system; it is not an inherent part of copying. Copying in itself hurts no one.

    • The same consequence can result if your friend decides to play bridge instead of reading a book.

      A better analogy would be that your friend read the book in the store instead of buying it to read at home. Also, if your friend decides to share copies of the book (for instance, memorizing the book read in the store and printing it out at home - this stretches the analogy pretty thin, since there isn't really a direct analogy), then the entity holding the rights to the original is due compensation from your
      • then the entity holding the rights to the original is due compensation from your friend for the copies distributed.

        This is exactly the kind of circular reasoning the grandparent was talking about.

        10 PRINT "Me: Why should downloading be illegal?"
        20 PRINT "You: Because it's copyright infringement."
        30 PRINT "Me: Why should copyright infringement be a crime?"
        40 PRINT "You: Because it takes profit away from the copyright holder."
        50 PRINT "Me: Why is the copyright holder entitled to that profit?"
        60 GOTO

        • Intellectual property exists, fair enough?


    • OK, AC, how do we lowly innovators protect ourselves?
      • I'm sick of hearing about lowly innovators losing money. Most of them aren't -- to file sharers at least. What people fail to realize is that in a vast majority of cases, the people copying works *would not have* purchased them. Get over it. It may still be illegal, but you're not losing money. Secondly, your bigger concern if you're a small innovator is the big companies that will attempt to rip you off. I come from a family of inventors who've had many patents ripped off by big name companies who ch
      • "OK, AC, how do we lowly innovators protect ourselves?"

        Good Product + Reasonable Price - Annoyance?

    • Well, I'm willing to accept their not making money they expected to make (because people downloaded stuff they didn't pay for) as a "loss", as long as they're willing to accept their making money they didn't expect to make (because people downloaded stuff and DID buy it) as a "gain". That knife cuts both ways, so they can bring it.

    • Tragedy of the commons (Score:4, Insightful)

      by RealProgrammer ( 723725 ) on Saturday December 11, 2004 @01:49AM (#11058726) Homepage Journal
      • Copying in itself hurts no one

      Copying hurts everyone, only just a little.

      The intent of copyright is to encourage progress in the arts and sciences by extending to creators of a work the right to control its distribution. This is no different today than it was in times past.

      There was no way to physically control copying of a book 200 years ago. No one really cared whether their copy of a book was from the rightful publisher, unless the spelling were bad or something.

      Your logic is accurate, but it misses the point completely because you're fighting a straw argument. Copyright is not intended merely to pay people for work they've created. It's intended encourage people to produce works in the hopes that they may profit, and to support them while they are producing more.

      In the classic example, Daniel Webster supported his family for 20 years on the proceeds from his speller while he compiled his famous dictionary. In publishing a dictionary, he inspired and aided countless writers and publishers. Probably you and I would not be reading /. were it not for those two works; in fact, they were so important to the early American educational system that without them we might not be reading English.

      But forget money for a second and think about Free software. Suppose it were no longer against the law to copy people's creative work however you wanted. Why, you could download a bunch of source code and put your own name on it. Wow, the AC Compiler. AC Linux. AC UNIX. AC Office.Org. And so on.

      What would the authors of those packages do? They'd quit writing Free software, that's what. Would *you* write something for someone else to claim? I wouldn't.

      And the musicians whose songs you think you have a right to copy would quit recording and get real jobs. Authors would quit writing, sculptors would no longer sculpt, except in their spare time away from those meaningful jobs at Kroger and General Electric.

      And the world would be a gray, dull, unamusing place.

      Copying without due recompense eventually hurts us all.

      • Re:Tragedy of the commons (Score:4, Interesting)

        by popo ( 107611 ) on Saturday December 11, 2004 @03:02AM (#11058902) Homepage

        You make the point that without 'ownership', there would be little incentive to create more ideas. This point is flawed for two reasons:

        1) The motivation to create things doesn't come from profit motives. Look around (look around the internet even) and you'll find tens of thousands of creative works and technological innovations that did not profit (and were not intended to profit) their makers in any way. (e.g. Linux).

        2) Ideas are formed on the backs of other ideas. Necessary to advanced intellectual and scientific reasoning is the act of processing, combining, accepting and rejecting thousands of other people's ideas and innovations.

        We live in an increcible new world where unprecedented access to vast quantities information enables us to recombine and process faster than ever before. Controlling the rights to information prevents achievement and invention.

      • Re:Tragedy of the commons (Score:5, Insightful)

        by bitwiseNomad ( 814756 ) on Saturday December 11, 2004 @03:42AM (#11058999)
        What would the authors of those packages do? They'd quit writing Free software, that's what. Would *you* write something for someone else to claim? I wouldn't.

        And the musicians whose songs you think you have a right to copy would quit recording and get real jobs. Authors would quit writing, sculptors would no longer sculpt, except in their spare time away from those meaningful jobs at Kroger and General Electric.

        I don't think you understand the economics of the situation. When you ask an actual artist whether they think P2P hurts them, you are not guaranteed to get the same answer each time. Many artists don't care or even think it is a good thing, and many artists percieve it as hurting their overall sales. However, if you ask distributors of music and movies the same question, you will get a nearly unanimous answer. Why do you think this is the case?

        The issue of copyright infringement is a distribution issue, as you pointed out. The difference now is that certain things can be very easily redistributed at no cost. The reason no one cared about someone copying a book in the past is that it was hard to do it, and in order to do it with any sort of economic impact, you would need to either 1.) employ a lot of people or 2.) have special equipment. On the other hand, it is easy to copy information nowadays. Whether you think copy protection and DRM restrictions are good or bad things, one fact remains true. Both of those things try to impose artificial scarcity on products which are not naturally scarce anymore (read: information, bits and bytes). That is why distributors are so pissed off but artists don't seem to care so much.

        P2P networks put distributors in a position in which they can no longer control the supply chains for their products. DRM and copy protection schemes are methods they use to regain this control, but whether they are present or not in a market, the demand for the artist's skill will still be present.

        Your argument assumes that the current methods of distribution are the only systems in which artists will be able to subsist. Even if our current distribution scheme goes away, the demand for music, movies, video games, etc will still exist. Artists will still be able to produce and will continue to make money at it, but the distribution system will more than likely not be one that you are used to. There are business models out there that take piracy into account, i.e. the amount of money that a business makes is not dependant on the amount of piracy by definition. Said another way, your argument only makes sense if you assume we have to use the current system or no system at all. That is simply not true.

        Suppose it were no longer against the law to copy people's creative work however you wanted. Why, you could download a bunch of source code and put your own name on it. Wow, the AC Compiler. AC Linux. AC UNIX. AC Office.Org. And so on.

        Please don't confuse law with economics. They don't always go hand in hand. The situation we're dealing with is an economic one, not a legal one. Filesharing networks will not get rid of copyright, and so the first part of your comment has no bearing on the discussion.

        Now on to the second part.

        First off, if I understand the GPL correctly, it is perfectly legal to redistribute GPL'd software as your own. Many people have done this, including all of the Debian-flavors-of-the-week. Second off (and this is the important point), you've missed the entire point of free software. GPL and BSD-style Free software is meant to be copied. Business models that revolve around free software *assume* that copying *will* and *does* occur on an *hourly* basis. If the makers of free software really feel like the redistribution of their software hurts them, then tell me why they themselves set up and maintain mirrors of their own software.

        The fact of the matter is that busines
      • But forget money for a second and think about Free software. Suppose it were no longer against the law to copy people's creative work however you wanted. Why, you could download a bunch of source code and put your own name on it. Wow, the AC Compiler. AC Linux. AC UNIX. AC Office.Org. And so on.

        What would the authors of those packages do? They'd quit writing Free software, that's what. Would *you* write something for someone else to claim? I wouldn't.

        Okay, internet story time. I once was in an inter

      • Copyright also steals from everyone (Score:4, Interesting)

        by Convergence ( 64135 ) on Saturday December 11, 2004 @05:16AM (#11059192) Homepage Journal
        ... a little at a time.

        The monopoly granted by copyright has its benefits as you so eloquently note. It also has its costs. In particular, because it is a legal monopoly, it encourages 'rent seeking behavior', as existing holders will attempt to extend the range and depth of their monopoly and attempt to exploit it to obtain regular income with no work. A classic example of this is Disney or the Milne family.

        Copyright must remain a balance between these two evils.

        Personally, I think the current situation with both hugely inflated copyrights and peer-to-peer may be the worst of both worlds. Copyright terms are long and restrictive so that old works cannot be reused, built upon, and reinterpreted in new ways and at the same time P2P filesharing may eventually put a huge dent into copyright revenue. People don't think, socially, p2p is that wrong because they see the insane extent of copyright law.

        How about this alternative?

        Let the term be, say, 30 years, but with strong enforcement. That means that people who want cheap stuff have a legitimate public domain source. Infringing copyright would become less socially acceptable. Old works that have procurred virtually all of their value (at 30 years) are available to be reinterpreted and built upon.
      • if you sell the stuff without the permission of the copyright holder or rerelease some stuff as your own then you are hurting
        i agree this should be punished as long as you make it for the costs of the act of copying itself or for free (even paying to distribute)
        you are hurting no one
        the problem is that some art converted to business
        in better times you made music for the sake of the music and maybe for fame
        books were made to be read and you had to copy them manually if you wanted to have your own copy
      • The intent of copyright is to encourage progress in the arts and sciences by extending to creators of a work the right to control its distribution.

        So why does all of my tax money go to debating the protection of the first company to buy what amounts to the first copy of the creation?

        Your logic is accurate, but it misses the point completely because you're fighting a straw argument.

        The point that is missed is that our laws do nothing to protect the creators.

        What would the authors of those packages do
      • The intent of copyright is to encourage progress in the arts and sciences by extending to creators of a work the right to control its distribution. This is no different today than it was in times past.

        History does not support this. Think of the Renaissance period.

        Copyright like many things that we accept as "alwas been there" is a very new human phenomenon.
      • Those of us that truly want to make music will continue to make music, because it is fun for us, and satisfying to know that others have heard it and been moved in some way. Those of us that truly want to write, will write. That's what writers do, they can't help themselves. Perhaps it won't be able to pay the bills. Being supported by your art is a nice dream that a lot of creative people have, but they don't calculate the odds and say, "Oh, I won't make money on this thing I want to share with the world,

      • Copying hurts everyone, only just a little.

        The intent of copyright is to encourage progress in the arts and sciences by extending to creators of a work the right to control its distribution. This is no different today than it was in times past.

        Ah, but what does "promote progress" mean? And why should we promote progress? Simply to allow a business model of creating and selling copyable works? No, I submit that the ultimate goal is to nuture a rich public domain. Wide knowledge of science obviously b

    • origin of copyright (Score:4, Interesting)

      by kardar ( 636122 ) on Saturday December 11, 2004 @01:57AM (#11058751)
      The origin of copyright goes back to at least English common law, if not further.

      The problem we have is that we have something that is not a physical object - I know it's an unpopular and purely approximate term, but "intellectual property". My point is that "you can't see it, touch it, feel it, etc...", but it is possible to own it. Something that a brain produces via its intellectual capacities or talents, yet there is no physical object to show for it.

      That's the very same problem that the "concept" of copyright has been addressing for hundreds of years. The point is that you CAN argue "Nothing is being taken off the shelf". Everyone agrees on that point - it's obvious nothing is being taken off the shelf. It's obvious no physical object is being taken from one person unjustly and given to another. That's what the concept of intellectual property law has been trying to address for the past few hundred years (or longer).

      It all revolves around making the not-real real. Pretending that something that does not exist as a physical object is a physical object. Taking something that is purely an invention of the mind and treating it as if it were the labor of one's hands. That's the whole point - it's not that no one understands this, it's that they understand it very well - miles ahead, actually... this is the very problem that copyright is supposed to address (at least in a common law, common sense sort of way). It's not just about encouraging people to create stuff. It goes deeper than that. It's about making intangible objects into tangible objects for the purpose of legislation and addressing injustices. It's always been that way, long before the U.S.A. even existed.

      On the other hand, there are other significant problems - you could say, in a way, that the type of music that our society had become filled with prior to the advent of the internet lended itself to what happened to it. The structure of the entertainment conglomerates, the concept of fame and fortune, the drugs, the sex, and the rock and roll... you can't go around pretending that stuff doesn't affect you in some way (just like your parents told you).

      The music changed, and evolved into something different, something that can't stand on its own merits and virtues, but needs sex and drugs and fame and fortune to prop it up, like a crutch. If you want people to not file-share, then the music itself should embody that point of view on a deeper, spiritual level. Rock bands don't accept donations from endowments. It's not "about" that. Rather than embrace society, popular music needs to rebel against it, using the fame and the fortune as a vehicle to tell anyone who might disagree to get lost. If popular music teaches you anything, it teaches you that file sharing is good, and that you should do as much of it as possible. It's the best way to empower yourself. It also happens to be the best way to expand your artistic horizons and stop listening to the crap that "they" want to feed you.

      It's two things, really. One is that the selection of "legitimate" multimedia is still somewhat limited for lots of people, and it makes it difficult for people to get together in real life and discuss interesting artists, bands, and movies. Electronic "discussions" make this much easier, and trading of files kind of needs to take place for those "discussions" to mean anything. Maybe "forums" is a better word. Any P2P application is really just a way for human beings to get together and share what they think is cool. Sounds like the entertainment conglomerates want this to happen in real life, not electronically - (i.e. have a get together and listen to music and watch DVDs). But this can't happen until the selection gets diverse enough that it makes it interesting enough and worthwhile for everyone involved. And that can't happen because there's no money to be made in such endeavors. The way to make money is to have less choices, more quantity. Everyone watching the same lacking selection of canned, pre-digested bland crap.
      • This problem (non physical "property") is not new. It is as old as when people began to think, develop mathematics etc. As soon as you start to acknowledge the existence and possibility of intellectual property, the very difficult question arises of where to draw the line: should any (casual) idea be ownable, should only more complex ideas?

        Should mathematics, or in general ideas that have not been "invented" but rather have been "discovered". One might argue for example that some innovative business method
        • I think that drawing the line at a song - for example - You've Lost That Lovin' Feeling - as an example - that's probably OK.

          Drawing the line at a novel - Lord of the Rings - no really big problem there.

          The problem that patent offices just hand out patents for anything "Get 'em while you can" - complicated by the fact that the benefit of the doubt is that the patent IS valid as far as the courts are concerned - these are serious problems.

          But the idea of a song, a movie, a novel, a kernel - we're probably
      • the fact remains that there is, at least in this very real situation that happens a lot - there is a demand that is not met, because the traditional distribution method provides no way that a profit can be generated, due to lack of quantity. Is this really the internet's fault?

        No, of course not. The thing that kills me is that, no, there is no legal way to get cheap low quality music except for iTunes. This is about it. Too bad that iTunes and the iPod are failing business models and Apple is about to
    • Your first statement is off the mark and that makes the rest off the mark too...

      The public actually owns the work in question.

      The copyright law gives the original creator of that work, the excludive right to DISTRIBUTE the work. That creator can the assign or transfer that DISTRIBUTION Right to another.

      So in the your first example: It is not the person getting the copy is at fault, it is the person that gave the copy in the first place. That is a competing distributor and if that person does not have t

    • Re:The farce of "loss" due to file sharing (Score:4, Interesting)

      by mcrbids ( 148650 ) on Saturday December 11, 2004 @03:49AM (#11059019) Journal
      Like most arguments put forth by copyright enthusiasts, it holds little water - for several reasons

      Hear that? It's the sound of an idiot modded insightful on slashdot.

      • The claim is mostly inaccurate because it presupposes that the copying individual would otherwise have bought a copy from the publisher. That is occasionally true, but more often false; and when it is false, the claimed loss does not occur.

        The value of goods is based on supply and demand. If supply is in shortened supply, generally the value goes up. That's the basis of copyrights - making sure that the value of authorized works retain their value by letting the copyright holder determine the supply.

        Making additional copies works somewhat like inflation - it causes the value to drop. Thus, a real loss does, in fact occur. The challenge is to represent that loss in a reasonable fashion.

      • ... But when your friend avoids the need to buy a copy of a book, the bookstore and the publisher do not lose anything they had...

        They most definitely HAVE lost something - the value of their materials!

      • In other words, the "loss" comes from the copyright system; it is not an inherent part of copying.

        This part you got right! Copyrights are a right granted by a government. However, you can be quite certain that the issue of the validity of copyrights will NOT be heard at this Supreme Court hearing - only whether or not P2P software providers are liable for the violations of copyright committed by their users.


      The copyright system is here to stay. And, for my part, I think that with the exception of the copyright extensions, the copyright system is "right". I'd want to cut the term back to around 20 years, and leave the rest alone.

      Note that nothing in copyright forbids stops you from writing a work, and gifting it to the world. You are not required to do anything at all with your works. You are, however, required to offer some basic respect for the works of others, and I like that.

      Remember, the almighty GPL is based on copyrights - the very force that makes Linux such a durable legal entity is the same that makes it illegal for you to swap MP3s with strangers without permissions from the copyright holder.

    • Re:The farce of "loss" due to file sharing (Score:4, Interesting)

      by westlake ( 615356 ) on Saturday December 11, 2004 @03:51AM (#11059025)
      The claim is mostly inaccurate because it presupposes that the copying individual would otherwise have bought a copy from the publisher. That is occasionally true, but more often false; and when it is false, the claimed loss does not occur.

      The natural assumption to make is that you copied the work because it was something you wanted and needed but weren't willing to pay for, else why copy it at all? It seems to me that the burden is on you to prove otherwise.

      In a free market system, no business is entitled to cry "foul" just because a potential customer chooses not to deal with them.

      But he has dealt with them. Your friend was not innocently playing bridge, he was reading a copy of a book he did not pay for. That, in the ordinary meaning of the word, is theft.

      If the public decides it can share copies, then the publisher is not entitled to expect to be paid for each copy, and so cannot claim there is a "loss" when it is not.

      There is no necessary connection between "sharing" and "not paying." But neither can the public compel a publisher to produce anything or distribute through channels to which they have access.

      Your use of the word "public" feels slippery.

      In the American system, copyright is based on Constitutional principles, with the details left to the discretion of the Congress and is intended to serve the interests of our people as a whole, not the adolescent wish fullfillment of the file-sharing demographic, in which the $300 million needed to produce The Lord of the Rings magically appears without the prospect of a financial return.

    • It is also inaccurate because it assumes that anyone who downloads does not then go on to purchase (a variation on your first point).

      I can point to numerous books, DVDs and CDs in my collection that I own because I have already downloaded them and decided I like them enough to buy them as well. K-PAX is one example; after downloading it and watching it, I now have the DVD and all three K-PAX books.

      I don't do speculative purchases any more. I have no end of CRAP on my shelves that results from this. Now
    • OMG, BS detector melting down into the ground here !

      it presupposes that the copying individual would otherwise have bought a copy from the publisher. That is occasionally true, but more often false

      Says who ? (aka "source: my ass")

      the word "loss" suggests events of a very different nature--events in which something they have is taken away from them.

      Yeah, like the ability to make a living out of your music.

      By releasing a work of art (regardless of its quality), some value is potentially created. You

  • Apples and oranges (Score:5, Insightful)

    by LostCluster ( 625375 ) * on Saturday December 11, 2004 @12:09AM (#11058336)
    This case is very different from the Universal v. Sony "Betamax" decision, and we're not doing ourselves a favor by constantly comparing the two.

    In the Betamax case, the central issue was over whether using the technology of a VCR to timeshift broadcast programs violated the copyright law, and the court said it wasn't a violation. If it was a violation, using a VCR to record TV would be illegal, and Sony and other VCR makers would be making devices that would have a primarily use that was illegal.

    In this case, however, there's no question about whether the use of the technology is legal. Using P2P to upload and download copyrighted works without the copyright owner's permission is illegal. The question is over liabilty... is Grokster liable because people are using their software for an illegal use, when the software can both be used for legal and illegal files.

    What's at stake here isn't the legality of P2P, but a dangerous question for software writers. Are the makers of software liable for what their users do with the software? So far they're not and hopefully it's going to stay that way.

    • Re:Apples and oranges (Score:4, Insightful)

      by tonsofpcs ( 687961 ) <slashback AT tonsofpcs DOT com> on Saturday December 11, 2004 @12:13AM (#11058358) Homepage Journal
      The use of the technology is legal, according to the Universal v. Sony decision; The use of it for wrongdoing [illegal things] is illegal [duh]. And btw, saying comparing the two won't help us isn't very on track. The 'Betamax' case was decided to say that Sony was not responsible for what the consumer did with its products, the user was; this case is to see if P2P network owners are responsible for what their users do with their products -- Where is the major difference?? Furthermore, I believe the Supreme Court will reference this case if the question of initial leaglity shows up (which it may well do).
      • The major difference is in the primary claim. In Sony, the claim was about the legality of a product that allowed you to violate copyright law. Here, it's about liability. Criminal vs. civil.

        It's a subtle difference, but it's important -- in Sony, we're talking about making VCRs illegal to make and sell, the same way that pot is illegal to make and sell, but with obviously different penalties.

        Here, we're talking about the companies being, more or less, required to perform "good faith" filtering of copyrig

        • Re:Apples and oranges (Score:5, Informative)

          by cpt kangarooski ( 3773 ) on Saturday December 11, 2004 @12:37AM (#11058443) Homepage
          No, you're wrong.

          In Sony the claim was whether Sony was liable for infringing uses of its products via a contributory infringement theory. It was a civil case, brought by Universal Studios.

          If they had been found liable on the basis of how their products could be used, then of course, they'd continue to be liable in the future unless they took the relevant products off the market, or redesigned them so as to avoid future problems, so in effect their liability could've been considered a ban on the technology, but it really would've been as to the liability of the manufacturers and distributors of it.

          Grokster is ALSO a civil suit, and is generally pretty similar.

          If the suit were criminal, first the question would be of guilt, not liability. Second, it would be brought by the United States, not a private party.

          You pretty clearly haven't read Sony, and don't really grasp the difference between criminal and civil litigation. You might want to do some work before posting on this subject again.
    • With all due respect I think you may be mistaken here. It wasn't the "timeshifting" element that was at the core of the Betamax case. Recording from TV *WAS* (and I believe *IS*) infringement. Instead, the argument was concerning whether devices which COULD be used to commit such an infringement crime were illegal.

      The core of the ruling (which is highly relevant) was that since VCRs *could* be used for legal purposes (such as making copies of home videos), they weren't illegal. Its possible for me to u

      • Recording from TV *WAS* (and I believe *IS*) infringement.

        Yes, but it is possible that that otherwise-infringing activity is in fact a non-infringing fair use under the time shifting theory.

        since VCRs *could* be used for legal purposes (such as making copies of home videos), they weren't illegal.

        First, individuals making copies of home videos is also infringing unless there is an applicable defense or exception, which there likely would not be. Second, the potential substantial non-infringing uses wer
        • I think you've misunderstood my post. By home videos I was of course referring to the kind you make with a camcorder, not your copy of Disney's "Beauty and the Beast".

          Read it again and if you're still struggling with it I'll try to use smaller words. :-)

          • Ah, well, that'd be the sort where the reproduction is done by the copyright holder or with their authorization, which I mention as a potential substantial noninfringing use.

            However, I had thought you meant commercially distributed videos.
      • That's correct. Betamax is not only relevant, it is one of the primary reasons for the successful Grokster defense so far. I think everyone interested in this case should read (or listen to) the oral arguments [groklaw.net] from the previous appeal. It's very convincing (to me) in favour of Grokster and it makes it extremely clear how Betamax is important. (There's even a link to the Betamax decision.) Basically, in order to rule against Grokster it seems that Betamax would have to be overturned, which would make VC
    • Are the makers of software liable for what their users do with the software? So far they're not and hopefully it's going to stay that way.

      Nobody is going to rule that software authors are liable for any actions performed by other using their software; but the courts might rule that software authors are liable if the intended use of the software is criminal.

      Personally, I hope this happens -- not because I'm concerned about P2P copyright infringement, but because I'm concerned about other software. Such a

    • Are the makers of software liable for what their users do with the software? So far they're not and hopefully it's going to stay that way.

      This cuts both ways. If software makers are liable for what the users do with their software, then Microsoft could finally be taken to court for unleashing Windows and Internet Exploiter on an unsuspecting populace. Mod this down if you feel you must, I don't care.

      But if software makers are found liable for what their users do with the software, I'm getting complete

    • Re:Apples and oranges (Score:4, Insightful)

      by seanadams.com ( 463190 ) * on Saturday December 11, 2004 @12:53AM (#11058521) Homepage
      What is absolutely the same in both cases is that the media industries fought the new technology tooth and nail until the some new industry (eg video rental) showed them how to make money - then their position changed 180 degrees.

      The only reason there's a fight is because right now we're in that "limbo period" before someone figures out how to make everyone profit on the new technology. It will happen - some will argue that it's happening already because p2p increases interest in music/video and this ultimately yields more sales. Even if that's 100% true it'll take some years for the tards at [MP|RI]AA to accept it.

      You can't fight technology. Figure out how to make money with it or STFU.
    • Seems like comparing this to guns makes is more accurate.

      Owning a gun = legal, with restrictions
      Using a gun = legal, legal with restrictions

      If someone owns or possesses a gun illegally the maker is not liable.
      If someone uses a gun for an illegal purpose, like threatening someone or shooting someone the maker is generally not liable.

      So are there any scenerios in which a gun maker would be liable for an end users actions? Perhaps, but it would be rare, and a lot of additional evidence would need to be use
    • I think the two cases are much more similar than you think. While the infringing uses of P2P networks get all the press (and Congressional) attention, these networks and software packages also have many perfectly legitimate and socially beneficial uses -- just like VCRs. IMHO it's vital to protect those legitimate uses even if some copyright infringement also results, just as the Bill of Rights protects the innocent at the cost of letting some of the guilty go free.

      Bit Torrent, in particular, is about the

    • they call it "a blow to copyright owners" but it's really just upholding the rights of innocent parties. Did Grokster infringe on copyrights? No. Do people use Grokster to infringe so? Of course.
      Liability has been decided in favour of Grokster et al, and the *AAs want to overturn the decision; obviously, the only way they can do that is by insisting (since it cannot be proven) that P2P has primarily evil purposes in mind. Intent, I believe, and also primary use, are considered.

      By reading this post,

  • nonminimal harm to the potential market? (Score:3, Interesting)

    by radarsat1 ( 786772 ) on Saturday December 11, 2004 @12:12AM (#11058354) Homepage
    [p.456] In summary, the record and findings of the District Court lead us to two conclusions. First, Sony demonstrated a significant likelihood that substantial numbers of copyright holders who license their works for broadcast on free television would not object to having their broadcasts time- shifted by private viewers. And second, respondents failed to demonstrate that time-shifting would cause any likelihood of nonminimal harm to the potential market for, or the value of, their copyrighted works.

    Can the same be said for file sharing? (Just a question, I'm not making a judgement here.)

    • Not in the same way, but filesharing could be a way for open source and freely distributable files to be transfered, as well as illegal things, so the technology isn't inheritly illegal (same thing basically)

    • I'm a copyright holder. Please share my MP3s. (Score:4, Informative)

      by MichaelCrawford ( 610140 ) on Saturday December 11, 2004 @12:25AM (#11058409) Homepage Journal
      Link [geometricvisions.com].

      Whenever I have gtk-gnutella running, you'll find them on the gnutella network. They're mine to share, I'm not violating anyone's copyright.

      Sometime soon I'm going to share lossless WAVs over bittorrent. I have to fix a problem with one of the tracks first.

    • This is a very good point and reflects the feelings I've had about file sharing for some time. While it's inaccurate to say that there is no loss incurred by file sharing, this loss is still vastly overstated by the recording industry.

      Sharing music files without the permission of the owner is copyright infringement and it does incur some loss so it is wrong on some level. But then, it's a pretty feeble crime. File sharing causes me about as much moral outrage as someone (possibly myself) taking an unreason

  • Maybe I'm over simplifying stuff... (Score:4, Insightful)

    by AlexMidn1ght ( 705563 ) on Saturday December 11, 2004 @12:13AM (#11058356)
    but are phone companies responsable if you use a phone line to commit a crime? Are car and gun compagnies responsable if you rob a bank with a gun and use a car to get away? It's hard to prove that filesharing networks are solely there to exchange copyrighted materials and nothing else.
    • Guns and cars are a bad comparison because both of those are heavily regulated and their manufacturers have paid damages in civil suits related to the use of their products - which is what MGM/Universal seem to be aiming for.
    • I think there is a possible problem if the primary and almost sole use of a device is to use it in commiting a crime and that there is little legitimate use of it.

      Guns are a bad example, because people have successfully sued makers of guns that worked, but in the commission of a crime. This is in contrast with other industries, where companies are normally sued if a product *didn't* work when it should have and someone was hurt or killed because of malfunction.
    • The car, gun and content companies make huge campaign donations. Kazaa does not. Therefore it is clear who is guilty and who is not. Case closed.

      The betamax case had two giants fighting. Sony must have paid more.

  • The difference is that, while a court ruling might have been able to prohibit the widespread importation and sale of VCRs, stamping out filesharing is (I'll go out on a limb here) impossible. The record companies are wasting a lot of money suing companies for the benefit of, having won, having to contend with the Freenets of the world.

  • I'm glad that... (Score:4, Informative)

    by DarkMantle ( 784415 ) on Saturday December 11, 2004 @12:21AM (#11058399) Homepage
    I live in the home of the free...

    This was decided [com.com] a long time ago in Canada.

    To summarize (and over-simplify) It's no different then a Library having a photocopier in a room full of copyrighted books. What people use it for is up to them.

    • Re:I'm glad that... (Score:2, Interesting)

      by X0563511 ( 793323 )
      True, but in the case of libraries with photocopiers there are usually copyright warnings at the entrences and on/around the machines. Maybe if a P2P network service followed something similar, it MIGHT be subjected to a little less harrassment.
    • "The mere fact of placing a copy on a shared directory in a computer where that copy can be accessed via a P2P service does not amount to distribution," Finckenstein wrote. "Before it constitutes distribution, there must be a positive act by the owner of the shared directory, such as sending out the copies or advertising that they are available for copying."

      The judge erred, in my opinion, when he stated placing files in a shared directory did not constitute infringement if the above quote from the article
    • its just a matter of time before that is changed
      the clock is ticking...

    • Re:I'm glad that... (Score:3, Interesting)

      by rackrent ( 160690 )
      Well I was a librarian for a short time and all of our meetings seemed to center on copyright. True, there are disclaimers that we adhere to regarding photocopying, and the like, but the publishing industry has always attempted to put some restrictions on libraries themselves regarding how their products are sold. For example, a personal subscription to Nature costs around $70 (US) a year, while an Institutional subscription costs well over $300 (US). I'm sure a lot of copies of academic journals on libr
  • I heard about this on the radio today. The announcer referred to "Groakster". Who the crap pronounces it "Groakster"? Reminds me of the guy who pronounced "warez" as "war-ezz".

    --grendel drago

  • The real reason for losses? (Score:5, Insightful)

    by Ctrl+Alt+De1337 ( 837964 ) on Saturday December 11, 2004 @12:44AM (#11058477) Homepage
    One thing I almost never hear in conjunction with the controversy on the record labels losing money due to decreased CD sales is the fact that the economy began to go downhill at around the same time that the CD sales began to fall. True, this coincidentally was also the time when file sharing became popular, but I should think that the bursting of the economic bubble would have more to do with the losses. CDs are a luxury item, basically, and when people have fewer discretionary dollars (as what happens when the economy goes sour) they quit buying as many luxury items. When the economy is up, people might just go out and buy that new CD even though there's probably only two or three good songs on it. When the economy is down, it has to be a damn good album or a person's favorite artist to get that CD sold. Upscale stores saw hits in 2001 (blamed on the economy), upscale restaurants saw hits in 2001 (blamed on the economy), and record companies saw hits in 2001 (not blamed on the economy). The logic doesn't follow.
    • There are two other major factors:

      1) The homogonizing and commoditizing of music. They record industry these days is all about making everything the same. Same types of bands, same sound, same music. I mean it's bad to the point that they generally always have singers go through an autotuner, even if the singer is plenty good enough to hold a pitch without help. This, combine with tactics like releasing one hit track per CD just so they can release more albums is disenchanting people.

      2) Video games. Used
    • There's something else to take into account. I don't have a link to it, but I remember reading somewhere online about a guy who proved that the music industry cut back on issuing new albums just a short time before starting to whine about piracy. His conclusion was that music sales declined mainly because there was less new stuff available, and that that was deliberate policy by RIAA members so that they could point to declining sales and blame file-sharing by pirates.
    • If you dig deep, the record labels cut CD production by 20% for the statistical time period quoted in RIAA documents. They only tout the 12% reduction in sales during the Napster hayday. Do the math. Cut production by 20%, and see only a 12% loss in sales? That's a net increase. But they don't tell you that. In fact, they've recently reported a net increase during the past several years.

      While I don't believe music downloading is right, I also don't believe that the services that provide the capabi
    • And I wonder if they count the music DVD sales as "CD" sales. They probably wouldn't. What about iMusic, does that count? I always see them moan about CD sales. What about MUSIC sales? Since when does it matter through which medium you sell your music? Simple prediction: in 2020 the sales of CD's will have plummeted to an all time low, with most of the revenue coming from 2nd hand sales.

  • This is a wierd thing to take to the supreme court (Score:3, Interesting)

    by twitter ( 104583 ) on Saturday December 11, 2004 @01:46AM (#11058710) Homepage Journal
    A movie studio is going to the supreme court in order to keep someone else from doing something? What's up with that? I thought that appeals of court decisions were to resolve issues where the law was missapplied and the government had violated someone's rights, not a place to beg the government to smash a software company that might be a threat to your revenue model. That cases like this are heard is an indication of how warped laws are by special interests who think the rest of us owe them a living.

  • BitTorrent To Be Next Target (Score:5, Interesting)

    by s7uar7 ( 746699 ) on Saturday December 11, 2004 @02:04AM (#11058776) Homepage
    It looks like BitTorrent may be next on the list. MPAA spokesman declines to say whether the trade group intends to sue Cohen [go.com]. They'd have a harder time proving that BitTorrent is primarily used for copyright infringement though, due to the many legitimate uses.
    • The files on the Web sites are not songs or movies but serve as markers that point the way to other users sharing a given file. BitTorrent then assembles complete files from multiple chunks of data obtained from everyone who is sharing the file.

      While some of the BitTorrent sites that host seed files have been forced to shut down, many others escape scrutiny because they're only hosting marker files, not copyrighted material.

      How is this different than Napster, which had servers that connected users, but

  • This case, when finally decided, will be equivalent to the Betamax case 20 years ago which ensured that VCRs were legal.

    Only if they decide for the defendants. If BetaMax had come down in favor of all the studios, media companies and fat-cat moguls that were against it, it would merely have been yet another chapter in the long, sad and ceaseless history of our government siding with its purchasers. Think about it: the only reason we still remember and talk about the BetaMax decision today is because it wa

  • That Darn Constitution (Score:4, Funny)

    by Nom du Keyboard ( 633989 ) on Saturday December 11, 2004 @11:42AM (#11060444)
    ...the right of the people to bear arms...

    ...shall secure for a limited period of time...

    ...marriage shall be between ???...(enacted 200x)

    Clearly The Constitution is at fault. Didn't those people know how to say what they really meant? And I'd always been told they were the smartest people of their time. Now I'm just sooo disappointed.

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