US Supreme Court Decisions

[Blackadar]

And real statistics are helpful. This is an interesting article/study/thesis:

hxx://www.firstmonday.org/issues/issue10_4/geist/

(excerpt)
Although the music industry seems loath to discuss the matter publicly, according to an October 2004 Economist article, an internal music label study found that between 2/3 and 3/4 of recent sales declines had nothing to do with Internet music downloads [8]. That finding was echoed in a Ministry of Canadian Heritage commissioned report which concluded that

"[t]he assumption by the recording industry that demand for CDs is fundamentally strong and that Internet piracy is to blame for falling sales is a simplistic reaction to a complex problem ... to place the burden wholly or partly on illegal downloads from the Internet is to ignore a host of other reasons." [9]
The "other reasons" include the growth of DVD sales, which accounted for zero revenue in 1999, but generated over C$170 million in new revenue from 2000–2004 [10]. The popularity of DVDs is surely related to the decline in CD sales and the shrinking shelf space allocated to CDs by music retailers.

Moreover, U.S. census data actually indicates that the number of hours people spend listening to music is declining. Its data suggests that people now spend increasing amounts of time talking on cellphones, playing videogames, watching movies and using the Internet [11].

The shift in music retail merchandising and marketing has also had an enormous impact on CD sales. The Recording Industry Association of America, CRIA’s U.S. counterpart, reports that the dominant retail chains are now big–box retailers such as Wal–Mart. In Canada, Wal–Mart and Costco now account for 25 percent of the music retail marketplace, while in the U.S., Wal–Mart, Target and BestBuy are responsible for over half of all CDs sold [12].

This shift affects the music industry in two ways. First, while traditional record stores carry 60,000 or more titles, Wal–Mart stores focus primarily on new releases, featuring an average of 5,000 titles [13]. The decreasing availability of older titles hurts an industry that has traditionally depended upon catalogue sales for about 40 percent of its retail music revenue [14].

Second, Wal–Mart has placed new pressures on the retail pricing of CDs — capping retail pricing in the United States at US$9.72 per CD. The pricing pressure has had a dramatic impact on the revenue generated from each CD sale. According to CRIA’s own numbers, revenue from prices of an average CD in 2004 was C$10.95, down 8.8 percent from C$12.00 per CD in 1999. The bottom line impact has been to shave C$53.9 million in revenue for sales in 2004 when compared with the same unit sales in 1999.

Additional factors behind the decreased revenues include a significant decline in the number of new releases issued over the past six years (less product presumably results in fewer sales) [15] and the view that the CD sales decline simply reflects broader economic conditions. For example, during the 1991 economic recession, CD sales growth in the United States dropped by 11 percent, a sharper drop than the most recent downturn [16].

In fact, perhaps the best evidence yet of the tenuous link between file–sharing and music sales comes from the music industry’s performance following the March 2004 Federal Court of Canada’s file–sharing decision which denied CRIA’s demand to disclose the identities of 29 alleged file sharers [17]. Despite the dire predictions that the decision would decimate music sales, the six–month period following the decision saw CD unit sales jump by 12.4 percent in Canada over the prior year [18].

[sterlingice]

Originally Posted by Blackadar

And real statistics are helpful. This is an interesting article/study/thesis:

Even more impressive would be statistics about file sharing not music sales. But that would be almost impossible to find since each side will greatly skew their results.

But, take, say, a random sampling of songs played on a radio station or three in an hour or a day or whatever. Go look up how many instances of each song are out there on eMule or Grokster or your network of choice. Then go see how many were released by the band as free mp3s and how many were not.

For software, there are tons of legal linux distributions out there on BT. But back when Suprnova or the other large torrent sites were up and operating, the ratio of illegal:legal software was at least 5:1 and that's being extrememly generous. Maybe it's different now- that I don't know. But I doubt it.


SI

[henry296]

IMO, the file sharing programs are an accomplice to the copyright violators. Just because you don't pull the trigger doesn't mean you can't be prosecuted for murder.

[Blackadar]

Originally Posted by sterlingice

Even more impressive would be statistics about file sharing not music sales.

SI

Can you properly evaluate one without the other? If the claim is that copyright infringment is so horrible to warrant the elimination of software that can be used to commit copyright infringement (but is not the sole purpose of that software), and the majority of that infringement is music, isn't it then prudent and relevant to examine the true effect upon those sales?

[Coffee Warlord]

Originally Posted by henry296

IMO, the file sharing programs are an accomplice to the copyright violators. Just because you don't pull the trigger doesn't mean you can't be prosecuted for murder.

So by your view, whoever makes a firearm is an accomplice to any crime committed with that firearm?

[panerd]

To paraphrase those in favor of Grokster. "We like to illegally copy music and files therefore we will talk about all of the proper uses of file sharing of which none of us use this for."

I used to use Napster and defended it much like these guys. Then I grew up and realized I was stealing from somebody and decided to stop acting like such a imbecile. You mean shoplifting from Walmart might actually effect more than the Walton family and stealing Pink Floyd might actually effect more than capital records? Well, I am selfish so I am going to go on some tangent about the gun industry or cars and not admit why companies like Napster really exist.

[ISiddiqui]

Originally Posted by Blackadar

Bad decision by the Supremes on the pot. I don't see how homegrown, local pot that is distributed for free (no legal tender) and without crossing state lines can in any way be considered interstate commerce. And given that the Federal Law and the CA Law were in direct conflict and that this isn't a direct Bill of Rights or Constitutional conflict (from an individual's rights level) I don't see how or why the Federal Law would take precedence over State law here.

I.e.:

1. No interstate commerce clause should apply
2. No individual rights were being infringed by the State

So why does Federal law override State law? It's not like Prohibition since it's not an Amendment to the Constitution.

It has been settled Supreme Court precedent since 1937 (IIRC) with Wickard v. Filburn (which has never been overruled) that any commerical activity has impact on interstate commerce, mostly because of its effects on supply and demand and thus prices, even if it wasn't crossing state lines, or even if in some cases it was being given for free (those people would have had to purchase it otherwise). It is irrelevant that the federal law bans the drug and thus people wouldn't be able to purchase it anyway in other states, it still has an economic effect, and that won't be changed any time soon, so best to live with it.

It wasn't an Supremacy Clause issue, it was a Commerce Clause issue.

[JonInMiddleGA]

Originally Posted by Blackadar

... isn't it then prudent and relevant to examine the true effect upon those sales?

Not really, since the issue (to me) has nothing to do with the impact on music sales but rather with the theft by taking of copyrighted materials.

[sterlingice]

Originally Posted by Blackadar

Can you properly evaluate one without the other? If the claim is that copyright infringment is so horrible to warrant the elimination of software that can be used to commit copyright infringement (but is not the sole purpose of that software), and the majority of that infringement is music, isn't it then prudent and relevant to examine the true effect upon those sales?

Just because I steal a pack of gum from WalMart which won't affect their bottom line at all doesn't make it any less of a crime or any less wrong. Stealing from a less popular band won't put nearly the dent into the CD bottom line as stealing from a more popular one, but it's just as wrong and illegal. Some would even argue that you're stealing from the band who needs it more and are thus even more wrong.

SI

[MrBigglesworth]

You guys are missing the point of intellectual property laws. The laws are not in place to protect the profits of companies. The laws are in effect to protect the variety of media available to the consumer. There is absolutely ZERO evidence that less music is being made because of file-sharing. There are people out there that would create music for free, just like people write their opinions in blogs for free.

The government's job is not to protect failing business models.

[Blackadar]

Originally Posted by panerd

To paraphrase those in favor of Grokster. "We like to illegally copy music and files therefore we will talk about all of the proper uses of file sharing of which none of us use this for."

I used to use Napster and defended it much like these guys. Then I grew up and realized I was stealing from somebody and decided to stop acting like such a imbecile. You mean shoplifting from Walmart might actually effect more than the Walton family and stealing Pink Floyd might actually effect more than capital records? Well, I am selfish so I am going to go on some tangent about the gun industry or cars and not admit why companies like Napster really exist.

If you're going to troll, get the hell out of this thread. I don't illegally copy music and I bet I have more CDs than 90% of the posters here (and therefore spent far more on music than most here). I own every single Pink Floyd album/CD too. So while some of us may be in favor of file-sharing, it doesn't mean we're illegally copying music/DVDs or anything else and I resent the implication that since I'm in favor of Grokster, I must be a pirate. Bite me.

As for Napster...it's not only legal, but supported by the music industry.

[sterlingice]

Originally Posted by Crapshoot

Actually, you can damn well have dynamite for construction purposes and demolition - so out that goes. Try again. Banning technology is a classic case of trying to close the barn door after the cow has escaped.

Except this is a completely unrelated jab as I wasn't talking about banning a specific bomb substance being banned. Rather that because an illegal item (bomb) can be used for a legal purpose (table), doesn't make it illegal to use. Dynamite can be used for legal purposes and illegal purposes and has been regulated as such. There is no such regulation on file sharing. You try again.

SI

[-Mojo Jojo-]

Originally Posted by Blackadar

Amazing how much we agree, isn't it? Just one correction - Grokster's sole intent isn't allowing users to violate copyrights. It's providing a file sharing service - interestingly enough, that sharing is what the Internet was originally designed for. (hxxp://www.isoc.org/internet/history/brief.shtml) Now while the majority of Grokster's use may be for illegal file sharing - but it does have legitimate uses. If MGM wins, ANY file-sharing networks would be liable for this traffic - and shut down the legitimate uses as well. I'm also concerned about the larger ramifications - if I create a modable FPS and someone creates a Star Wars mod using that software, can George Lucas sue me?

My feeling is that the Court is going to nail Grokster one way or another, it's just a question of how much collateral damage they do by way of their reasoning.

The question is a bit narrower, I think, than your arguments above. Napster has already established that a p2p file-sharing program can be held liable for contributory infringement. A key distinction betweek the Grokster case and Napster is that the Napster software ran through a central server that allowed the company to monitor transactions, cancel downloads, ban users, etc. Napster had the technical ability to police copyright violations occurring over their system and failed to do so, despite specific notice from the copyright owners of violations and got burned for it.

Grokster uses a supernode structure, which means they could shut down all their computers and clean out their offices and it would have no impact on Grokster users. They don't have the same sort of control that Napster did. The 9th Circuit agreed that Grokster had substantial noninfringing uses and that they had no ability to control the use of their software, which going back to the Sony betamax case provides them with a defense against contributory infringement. MPAA is challenging on the substantial noninfringing use, but I tend to think the Court will rule for Grokster there.

A more problematic issue is the 7th Circuit's Aimster decision. Like Grokster, Aimster was implemented in such a fashion that the developer could not police copyright violations. There, however, the court ruled that the designer, knowing that the primary use of the software would be copyright infringements, intentionally designed the software to conceal what was going on; that the company had willfully blinded itself to the infringement. The 7th Circuit held that willful blindness was not a valid defense against contributory infringement and ruled against Aimster.

Aimster predates Grokster, but the 9th Circuit really gave no consideration to willful blindness when they ruled in Grokster's favor. What I think may happen here (and given all the options, what I think should happen) is that the Supreme Court adopts the 7th Circuit's willful blindness approach and finds against Grokster (or remands to the 9th). Alternatively they may find that the noninfringing use is not substantial enough, or (worst case scenario) overturn
Sony. I just really don't see them allowing Grokster to walk away from this unscathed.

[panerd]

Originally Posted by Blackadar

If you're going to troll, get the hell out of this thread. I don't illegally copy music and I bet I have more CDs than 90% of the posters here (and therefore spent far more on music than most here). I own every single Pink Floyd album/CD too. So while some of us may be in favor of file-sharing, it doesn't mean we're illegally copying music/DVDs or anything else and I resent the implication that since I'm in favor of Grokster, I must be a pirate. Bite me.

As for Napster...it's not only legal, but supported by the music industry.

Calling a spade a spade is trolling? Grokster's only purpose is as the lastest end around to pirate music. Same with Napster a few years ago. To defend it unfortunatly puts you with the pirates.

[sterlingice]

Originally Posted by Coffee Warlord

Outlawing things because they can be used for good/bad/ugly is asinine. ANYTHING can be put to an illegal/dangerous purpose. If there's a legitimate purpose for a tool, it should be legal, end of story. No, I don't consider a 500 pound bomb to have any legitmate purpose other than for blowing shit up.

Considering all these file sharing systems are leading/have lead to some better applications (BitTorrent anyone?), and DO in fact have legitimate purpose, outlawing them is absolutely a Bad Idea.

But that's why I set up a test of "majority used" rather than just a blanket "bad/good" scenario. I can kill someone with any number of things in my room- bean bag chair, desk, computer monitor, chopsticks, shotglasses, AOL cd, etc, much as I'm thinking I might want to do when I'm done with this thread But that doesn't mean they should be illegal. The line I drew involved the intent and use of the technology.

SI

[sterlingice]

Originally Posted by BrianD

Do you really think more than 50% of all burned DVDs contain legally reproduced material?

No, but I bet 50% of people who use DVD burners use them for legal use. I suppose one could argue over whether the percentage of material or percentage of users is a proper benchmark. Again, we don't have good statistics, but I bet if we set up the most rigid test of these: % of users on file network and % of bandwidth used (or CDs burned or whatever) and still 50% of both tests would be passed.

SI

[Blackadar]

Originally Posted by MrBigglesworth

You guys are missing the point of intellectual property laws. The laws are not in place to protect the profits of companies. The laws are in effect to protect the variety of media available to the consumer. There is absolutely ZERO evidence that less music is being made because of file-sharing. There are people out there that would create music for free, just like people write their opinions in blogs for free.

The government's job is not to protect failing business models.

Bingo. Again, the case ultimately centers around Fair Use vs. Copyright protection. To scrap Fair Use, I think it's incumbent upon the industry to not only show that something like Grokster or Bittorrent is being used illegally, but that it has a such a devastating impact upon the industry so as to outweigh the legitimate uses of file-sharing programs and existing Fair Use doctrine.

Remember, in the Supreme Court's landmark decision in Sony Corporation of America v. Universal City Studios, Inc. (a.k.a. the "Sony Betamax ruling") held that a distributor cannot be held liable for users' infringement so long as the tool is capable of substantial noninfringing uses.

[MrBigglesworth]

Originally Posted by panerd

Calling a spade a spade is trolling? Grokster's only purpose is as the lastest end around to pirate music. Same with Napster a few years ago. To defend it unfortunatly puts you with the pirates.

That is a completely ignorant view of the potential benefits of P2P filesharing.

And also, are you similarly against iPods? They carry as much illegal content as P2P networks.

[sterlingice]

Originally Posted by Blackadar

If you're going to troll, get the hell out of this thread. I don't illegally copy music and I bet I have more CDs than 90% of the posters here (and therefore spent far more on music than most here). I own every single Pink Floyd album/CD too. So while some of us may be in favor of file-sharing, it doesn't mean we're illegally copying music/DVDs or anything else and I resent the implication that since I'm in favor of Grokster, I must be a pirate. Bite me.

As for Napster...it's not only legal, but supported by the music industry.

C'mon, blackadar- you knew what he meant about Napster and were just taking a cheap shot. "used Napster" = back before it was broken up and was ruled illegal as compared to now when it's settled its copyright disputes with the music industry.

SI

[Blackadar]

Originally Posted by panerd

Calling a spade a spade is trolling? Grokster's only purpose is as the lastest end around to pirate music. Same with Napster a few years ago. To defend it unfortunatly puts you with the pirates.

You're not calling a spade a spade. You're saying that anyone who defends things like Fair Use is a pirate. It's insulting to those of us who understand intellectual property laws, Fair Use and even product liability ramifications.
If you don't see the difference, then your opinion is so uninformed as to not understand the issue at all and is therefore worthless. It's like defending the rights of Nazis to march - I may not like their message, but they do have the right to do and THAT'S what I support.

As Biggs said, most of the music on IPods is illegal. You want to ban those next? How about the MP3 format entirely? Since the majority of the use is illegal files, let's ban the MP3 file format. Get the picture yet?

[Blackadar]

Originally Posted by sterlingice

C'mon, blackadar- you knew what he meant about Napster and were just taking a cheap shot. "used Napster" = back before it was broken up and was ruled illegal as compared to now when it's settled its copyright disputes with the music industry.

SI

Believe it or not, I supported the Napster decision. The reason? Because Napster was hosting the illegal files. Therefore, they are the distributor of copyright protected information/music/movies. That's blatently illegal and Napster deserved to get bitch-slapped.

Grokster is nothing more than a conduit. They don't host any illegal files. More than 50% of email is illegal SPAM. Should we ban Outlook Express?

[panerd]

Originally Posted by Blackadar

You're not calling a spade a spade. You're saying that anyone who defends things like Fair Use is a pirate. If you don't see the difference, then your opinion is so uninformed as to not understand the issue at all and is therefore worthless.

OK, maybe my initial post was too inclusive. It shouldn't have been about everyone pro-grokster/pirating. It should have read anyone who uses a lame argument like guns and cars should be illegal to defend pirateing software is almost 99.9% certainly a pirate themselves. (This leaves you a 0.1% chance to get out if you were in that group)

[sterlingice]

Originally Posted by gstelmack

Although I could see a case being made for forcing these companies to at least perform spot checks to remove illegal materials, the same way we have weigh stations for trucks, customs at the borders, and make E-bay and other auction sites pull down stuff that shouldn't be up there.

This I would be greatly in favor of. But, really, no file sharing network has done any such thing. The file sharing "industry" as a whole has had quite a few years now to try and police itself and they have failed miserably. They have been told to do it on numerous occasions and have arrogantly denied and flaunted their ability to try and squeak around laws.

In an ideal world, the MPAA/RIAA and file sharing architects would sit down and hash out a system similar to random checks, as stated above. But neither side has been willing to do this- the AA's have wanted to hack onto people's computers and declare everyone in the world illegal while the file sharing networks just bounce from one system to the next- when one closes, they create another similar system. The MPAA/RIAA have been handing out subpoenas from time to time so I guess that constitutes said "spot checks" but they have been completely initiated by those organizations in self interest and with the resistance of the networks.

This seems like a good middle ground but I have no idea how to properly institute it that wouldn't result in encroaching on rights to privacy. Problem is judges and Congress don't nearly understand technology to the level of even the average user. So all decisions are made on bad analogies to other technology and just a general slowness in regard to rulings and laws passed down.

SI

[MrBigglesworth]

Originally Posted by Blackadar

To scrap Fair Use, I think it's incumbent upon the industry to not only show that something like Grokster or Bittorrent is being used illegally, but that it has a such a devastating impact upon the industry so as to outweigh the legitimate uses of file-sharing programs and existing Fair Use doctrine.

Exactly. The music and video creative industries have nothing to fear from P2P. The music and video production and distribution industries have just as much to fear from P2P technology as buggy-whip and carriage makers had to fear from the automobile. I'm not really shedding any tears over their demise, as I feel they have done more to restrict available music to the consumer than to promote it. P2P will reduce distribution costs to a point where anyone can write a song and have it available to millions, greatly increasing the benefits to consumers.

[-Mojo Jojo-]

Originally Posted by Blackadar

Believe it or not, I supported the Napster decision. The reason? Because Napster was hosting the illegal files. Therefore, they are the distributor of copyright protected information/music/movies. That's blatently illegal and Napster deserved to get bitch-slapped.

Grokster is nothing more than a conduit. They don't host any illegal files. More than 50% of email is illegal SPAM. Should we ban Outlook Express?

Napster did not host any files. Napster did host an index. Napster did not get sued for direct copyright infringement (which would be the case if Napster itself hosted the files), they were sued for contributory infringement (i.e. they facilitated infringement by their users). And the copyright holders won. Sony Betamax is not as broad as you're making it out to be. Both Napster and Aimster had noninfringing uses, but both lost under Sony.

In order for a company to be protected from contributory infringement, Sony requires that:

a) the product/service has substantial noninfringing uses AND
b) there is not an ongoing relationship between the direct infringer and the contributory infringer that would allow the contributory infringer to control the use of copyrighted works by the direct infringer.

Napster lost on part (b). Aimster appended to the Sony test:

c) the lack of a relationship in (b) should not be the result of an intentional scheme by the contributory infringer to willfully blind itself to ongoing copyright violations.

Aimster lost on this basis. Grokster, if held to the Aimster standard, will probably lose on that too. Sony is not a get out of jail free card for any and all contributory infringement...

[BrianD]

Originally Posted by -Mojo Jojo-

Napster did not host any files. Napster did host an index. Napster did not get sued for direct copyright infringement (which would be the case if Napster itself hosted the files), they were sued for contributory infringement (i.e. they facilitated infringement by their users). And the copyright holders won. Sony Betamax is not as broad as you're making it out to be. Both Napster and Aimster had noninfringing uses, but both lost under Sony.

In order for a company to be protected from contributory infringement, Sony requires that:

a) the product/service has substantial noninfringing uses AND
b) there is not an ongoing relationship between the direct infringer and the contributory infringer that would allow the contributory infringer to control the use of copyrighted works by the direct infringer.

Napster lost on part (b). Aimster appended to the Sony test:

c) the lack of a relationship in (b) should not be the result of an intentional scheme by the contributory infringer to willfully blind itself to ongoing copyright violations.

Aimster lost on this basis. Grokster, if held to the Aimster standard, will probably lose on that too. Sony is not a get out of jail free card for any and all contributory infringement...

I don't think I could complain about Grokster being held to the Aimster standard and losing. I don't like the thought of shutting down all of the P2P programs just because they could be (and are) used for illegal purposes, but I'm not against disallowing the willfull blindness loophole.

[JPhillips]

Whether right or wrong the music companies are fighting a losing battle. They can never outlaw all file-sharing systems. If they win here another will take its place either in the US or off-shore. In the long runthey can't win the battle against P2P because the technology is out there. Never in human history has an industry been able to stop a technological advancement.

So what should the music industry do? I don't know, but they need to focus on a new business model. The one they are desperately trying to hold onto is slipping away and can't sustain itself.

[Blackadar]

Originally Posted by -Mojo Jojo-

Napster did not host any files. Napster did host an index. Napster did not get sued for direct copyright infringement (which would be the case if Napster itself hosted the files), they were sued for contributory infringement (i.e. they facilitated infringement by their users). And the copyright holders won. Sony Betamax is not as broad as you're making it out to be. Both Napster and Aimster had noninfringing uses, but both lost under Sony.

In order for a company to be protected from contributory infringement, Sony requires that:

a) the product/service has substantial noninfringing uses AND
b) there is not an ongoing relationship between the direct infringer and the contributory infringer that would allow the contributory infringer to control the use of copyrighted works by the direct infringer.

Napster lost on part (b). Aimster appended to the Sony test:

c) the lack of a relationship in (b) should not be the result of an intentional scheme by the contributory infringer to willfully blind itself to ongoing copyright violations.

Aimster lost on this basis. Grokster, if held to the Aimster standard, will probably lose on that too. Sony is not a get out of jail free card for any and all contributory infringement...

Thanks for the clarifications/corrections. Since you seem to have a better understanding of this case, what's the difference between Napster/Aimster and Grokster? And since Napster/Aimster had already been decided, why did the 9th Circuit use Sony over the Napster/Aimster decisions?

Taking it one step further, how would they even come after Bittorrent? After all, it's not even a central server but a "true" P2P program that relies on various out-of-country websites for links/files. It seems like it's like trying to catch smoke in your hand...

[-Mojo Jojo-]

Originally Posted by Blackadar

Thanks for the clarifications/corrections. Since you seem to have a better understanding of this case, what's the difference between Napster/Aimster and Grokster? And since Napster/Aimster had already been decided, why did the 9th Circuit use Sony over the Napster/Aimster decisions?

Taking it one step further, how would they even come after Bittorrent? After all, it's not even a central server but a "true" P2P program that relies on various out-of-country websites for links/files. It seems like it's like trying to catch smoke in your hand...

I had to write a paper on this stuff back in March. It was one of the more fun assignments I've had..

My first post (#63) goes into this some, but I'll clarify. All three of the P2P cases (Napster, Aimster, Grokster) are under Sony to some degree. It's important to note that (pending the Grokster ruling) none of these cases has been reviewed by the Supreme Court. Napster and Grokster were both before the 9th Circuit, Aimster was in the 7th.

Napster failed to qualify for Sony protection because they had an ongoing relationship with their users (the master list of files on the network) which allowed them to police for copyright violations. This was different from Sony, where, after the betamax was sold, Sony no further contact with or ability to control the users.

Aimster created a limitation on Sony for willful blindness. There was nothing in Sony itself to indicate that willful blindness was a factor, but I think the 7th Circuit felt it was an implicit limitation on the protection offered by Sony. And it makes a lot of sense. Assuming (as the circuit courts must) that contributory infringement is a valid claim, it is hard to justify the Sony ruling if you interpret it to allow people to game the system as a trivial means to escape from responsibility for contributory infringement.

The Grokster ruling only took account of Napster and Sony. The lack of control over the users placed Grokster in the Sony precedent rather than the Napster precedent. Since Aimster was decided in a different circuit, the 9th is not required to honor that precedent (although generally the appellate circuit courts will follow precedent from other circuits). In this case they gave Aimster some lip service, but they essentially ignored it, creating a split between the 7th and 9th Circuits.

There is an interesting question that would come up if the Supreme Court adopts the willful blindness test, and that is whether Grokster, in fact, was attempting to evade the Napster precedent. It's pretty obvious that after Napster all of the new P2P systems avoided any central indexing since that was what caused Napster to lose. However, there are other benefits to the supernode structure (decreased hardware and bandwidth costs for the service, no single point of failure, possible performance benefits). Grokster could (and almost certainly would) try to argue that they were not intentionally evading copyright laws, but were merely taking advantage of a superior design. I don't know how that would play out. It will probably be a lot better for Grokster if the case is returned to the 9th Circuit for that evaluation. They're a more liberal court and have already shown that they're receptive to Grokster's arguments. The SCOTUS justices are older than the hills, more conservative, and probably have a rather different relationship with technology and the internet that will make them more receptive to the MPAA's efforts to brand Grokster as evil hackers and pirates.

I agree with the earlier comments that regardless of what happens to Grokster this case is not going to put an end to P2P filesharing. A sophisticated P2P system can be created by a single programmer (Shawn Fanning, Bram Cohen). It's like whack-a-mole, the legal system can't keep up. The danger in the case is the possibility that the Court will overturn Sony itself. Although there is some speculation that this might happen, I think the likelihood is very small. But it would be really bad news for hardware and software developers if they did..

[st.cronin]

I'm just curious, how do those of you who argue Grokster should be allowed to exist the way it does think illegal file sharing should be prevented?

[JonInMiddleGA]

Originally Posted by -Mojo Jojo-

It's like whack-a-mole, the legal system can't keep up.

Which is a handicap on the legal system that needs to be addressed. Starting with putting some serious teeth into laws that punish copyright violators.

The realization that getting caught as an accomplice could mean your new roomie might think you're his next girlfriend would be a good first step.

[Blackadar]

Originally Posted by JonInMiddleGA

Which is a handicap on the legal system that needs to be addressed. Starting with putting some serious teeth into laws that punish copyright violators.

The realization that getting caught as an accomplice could mean your new roomie might think you're his next girlfriend would be a good first step.

Punishment > Crime

Next, you'll advocate the Death Penalty for jaywalkers.

[Blackadar]

Originally Posted by st.cronin

I'm just curious, how do those of you who argue Grokster should be allowed to exist the way it does think illegal file sharing should be prevented?

Good question. My answer is I don't really know. I think it's up to the private enterprise - in this case, the media companies - to protect their rights. Let me think on it a bit and get back to you, but it's a very fair question.

[sterlingice]

Originally Posted by Blackadar

Good question. My answer is I don't really know. I think it's up to the private enterprise - in this case, the media companies - to protect their rights. Let me think on it a bit and get back to you, but it's a very fair question.

Unfortunately, that's the big question. The RIAA has tried to "protect their rights" by what is basically hacking into people's computers. If we allowed them the same leeway that has been afforded file sharers to this point, then they'd be allowed to just confiscate every computer in the US and check for stuff at the owner's inconvenience.

SI

[JonInMiddleGA]

Originally Posted by Blackadar

Punishment > Crime

I disagree. And although I'd personally like to see these thieves executed in a slow & painful manner, I sadly admit that isn't a realistic possibility.

What I do have as a goal is an acknowledgement that thieves are thieves, and that they should be treated as such. And putting them away for a significant length of time is a good start toward that end. As far as I'm concerned, they've forfeited their right to live free, by their inability and/or unwillingness to stop stealing from others.

[st.cronin]

Originally Posted by Blackadar

Good question. My answer is I don't really know. I think it's up to the private enterprise - in this case, the media companies - to protect their rights. Let me think on it a bit and get back to you, but it's a very fair question.

Maybe not a fair comparison, but it's not exactly up to you to protect yourself from a mugging.

[Airhog]

I may have a simplistic view of this situation, but I feel that you cannot prosecute the creators for 3rd party content. the creators did nothing illegal. I think a fitting analagy, is say EA buys the rights to the NFL License for all platforms, PC included. Now Jim makes a game with fake players. Someone comes along, creates a new roster with the real players, and EA sues Jim over it.

Its like a line in the sand, where do you draw it? Give the end users too much freedom, and they will abuse it. If you give the content providers too much power, then you end up with freedom being suppressed.

If the MPAA and the RIAA had there way, you would not be able to copy anything for home use. You wouldnt be able to record your favorite T.V. show on TIVO, or backup your music CD's. And I think that goes too far.

[MrBigglesworth]

Originally Posted by JonInMiddleGA

I disagree. And although I'd personally like to see these thieves executed in a slow & painful manner, I sadly admit that isn't a realistic possibility.

This is from Matthew Yglesias, who sums it up better than I could and also addresses not only the issue of enforcing the laws that st. cronin asked about, but also the rediculous punishment ideas of JonInMiddleGA:

There is, however, a secondary point that is in some ways even more important, though the respondents don't like to make the argument for legal purposes. This point is that with intellectual property, unlike with physical property, the socially optimal amount of infringing is non-zero. With rivalrous goods, theft can never be a Pareto-optimal exchange (i.e., it always makes the property owner worse off) and while there are probably occassional instances of theft that help improve social welfare (the proverbial man who steals a loaf of bread to feed his starving familty) this sort of thing is, in fact, exceedingly rare, especially in a developed country where, though poor people face a lot of very serious difficulties, nobody actually needs to steal to avoid starvation.

Intellectual property isn't like that at all. Pareto-optimal instances of infringing use -- which is to say instances that make some people better off, and no people worse off, than they would have been had the infringing not taken place -- are exceedingly common. Indeed, it seems to me that most copyright infringement is like that. People "steal" a file that, had they been unable to "pirate" it, they simply wouldn't have bought. In a case like this, the infringer is made better off, and the copyright holder is no worse off than he would have been had the infringement not taken place. Indeed, the copyright holder may benefit through, e.g., higher concert ticket or merchandise sales or because the infringer exposes the work to a broader audience, some proportion of which winds up paying for the work. But -- and it's important to keep this in mind -- the case for infringement in these cases where there's no crowding out of purchases does not depend on the notion that the holder may reap some spillover benefits. The infringement itself, as long as it's not a crowding infringement, is a benefit to society just on its own.

In cases of real property, of course, we need to balance the undesirability of theft against the costs of enforcement. No big city tries seriously to bring the rate of theft and burglary to zero because the costs of doing so would outweigh the benefits. But if there were a cost-free mechanism of accomplishing this goal, any sensible mayor would implement it. The stealing, as such, is always a bad thing. Intellectual property is different. Establishing the death penalty for copyright infringement would probably bring its incidence to almost nothing. But not only would this be grossly disproportionate to the scale of the wrongdoing, eliminating infringement would actually be a bad thing, over and above the issue of negative externalities the Grokster respondents are raising.

[BrianD]

Originally Posted by st.cronin

I'm just curious, how do those of you who argue Grokster should be allowed to exist the way it does think illegal file sharing should be prevented?

Maybe Grokster shouldn't have to worry about it. Is there any reason the RIAA couldn't set up their own Grokster peering points with lots of content and go after anybody that shows up in their logs?

[RendeR]

Originally Posted by BrianD

Maybe Grokster shouldn't have to worry about it. Is there any reason the RIAA couldn't set up their own Grokster peering points with lots of content and go after anybody that shows up in their logs?

this would be, I think, Entrapment, which is not legal as far as i know, but I'm old and senile, ignore me.

[Greyroofoo]

Personally I think people who illegally share music should be fined $5 /$10 for every illegal song/movie in their possession. Jailling everyone who illegally pirates movies would just be a huge burden on the prison system and taxpayers

Or if that doesn't work there's always slow painful torture

[JonInMiddleGA]

Originally Posted by MrBigglesworth

This is from Matthew Yglesias, who sums it up better than I could and also addresses not only the issue of enforcing the laws that st. cronin asked about, but also the rediculous punishment ideas of JonInMiddleGA:

Wrong again Biggles. Or at least, the halfwit you're quoting is wrong.
Specifically, the notion that "The infringement itself ... is a benefit to society just on its own."

Uh-huh. Right. Fucking thieves benefit society. Ho-kay. And anybody with a half a brain is supposed to take this guy seriously after making that claim? Right.

Then again, what should I expect from some 20-something barely out of school? Harvard or otherwise. But you did provide a great piece of evidence if we can ever get a trial for the truism that "There is no shortage of educated idiots in the world".

[st.cronin]

Nobody has really tried to seriously answer my question which had nothing to do with the morality of file-sharing or copyright infringement. Assume that there is illegal pirating occuring, and that we wish it to stop. What, in your opinion, is the proper way to prevent it?

[-Mojo Jojo-]

Originally Posted by st.cronin

Nobody has really tried to seriously answer my question which had nothing to do with the morality of file-sharing or copyright infringement. Assume that there is illegal pirating occuring, and that we wish it to stop. What, in your opinion, is the proper way to prevent it?

There's no simple one-part answer. I'd don't mind to see for-profit P2P companies held liable for contributory infringement. If they are going to make a profit off it, they should be obligated to pay for the rights to the content they are profiting off it. It's a more difficult question for P2P systems created on a non-profit (possibly open source) basis. It's a different ethical question for one, and it is most certainly a different legal question. It may be difficult to identify the creator(s) of the software and even if you do it is quite possible they will be insolvent (college students), and likely that even if they are not they can't pay the fine (which would be an absurdly high amount of money), and in any case once the system is out in the wild hitting the developer up for a fine won't accomplish anything other than deter other developers (and it's fairly obvious that Napster and Aimster have had little deterrent effect). There are also jurisdictional issues for systems developed internationally (although I think most countries have something similar to contributory infringement). P2P systems are likely here to stay.

So the best bet is a combination of pursuing individual infringers (which the RIAA is already doing), technological attacks on file-trading systems (i.e. flooding them with dummy files and such, although this opens a whole new bag of legal questions), and attacking the black market by providing the product at a reasonable cost. Arguably iTunes is already doing this (although they may not have found the optimal price point and there are plenty of objections to their DRM), and there are starting to be online movie distributors as well. There's still not much available in the realm of legal TV downloads (and I really miss downloading the Daily Show after the latest round of bittorrent crackdowns).

[MrBigglesworth]

Originally Posted by JonInMiddleGA

Wrong again Biggles. Or at least, the halfwit you're quoting is wrong.
Specifically, the notion that "The infringement itself ... is a benefit to society just on its own."

Uh-huh. Right. Fucking thieves benefit society. Ho-kay. And anybody with a half a brain is supposed to take this guy seriously after making that claim? Right.

Then again, what should I expect from some 20-something barely out of school? Harvard or otherwise. But you did provide a great piece of evidence if we can ever get a trial for the truism that "There is no shortage of educated idiots in the world".

Jon, no offense, and I mean this with all sincerity, this is the most ignorant thing I have ever read on this or any other message board. And I don't mean that in a personal attack kind of way, I mean that in an actual Merriam-Webster "lacking knowledge or comprehension of the thing specified". Frankly, I'm stupified. His rationale was right there in what I excerpted:

Pareto-optimal instances of infringing use -- which is to say instances that make some people better off, and no people worse off, than they would have been had the infringing not taken place -- are exceedingly common. Indeed, it seems to me that most copyright infringement is like that. People "steal" a file that, had they been unable to "pirate" it, they simply wouldn't have bought. In a case like this, the infringer is made better off, and the copyright holder is no worse off than he would have been had the infringement not taken place.

That's black and white, not really much anyone can add to that. And I don't think that can be argued. Of course there are some grey areas in the issue, but the fact that some if not most of the transactions benefit one party and do no harm to the other. Terms like 'halfwit', 'half a brain', and 'idiot', all while not offering a single refutation to any premise in the argument, do more to show the ignorance of the accuser than anything else.

[Blackadar]

Originally Posted by st.cronin

I'm just curious, how do those of you who argue Grokster should be allowed to exist the way it does think illegal file sharing should be prevented?

Ok, I said I'd come back and give it some thought.

And before I start, let me say that nothing will prevent all illegal file sharing. Just like nothing has prevented games from being copied, bootlegs from being made and the like. The cat's been out of the bag for many, manyyears. It's a matter of minimizing the impact. I think it's a 5-pronged approach in order to do so.

1) Technological Advancement, 2) Education, 3) Updating Laws, 4) Lawsuits and 5) Changing Business Practices.

1. Technological - Technological advancements like Digital Watermarks, encryption and the like. And I know that whatever is made can be hacked. That's not the goal. It's to make it inconvenient and/or risky enough to not be worth the trouble. Create new media types that are in demand. Create new technologies along with these media types. It's like erecting a chain-link fence - you want to keep the honest man out. I'd even advocate creating an imbedded "call home" signal so that it's easier to pinpoint illegal files.

2. Education - I think it's a matter of keeping people - especially kids and their parents - aware of the dangers (viruses), penalities (fines) and alternatives to file sharing. Much like MADD helped with Drunk Driving, this type of education is invaluable. Just look at this board - many of us have been file-sharers at one point and I'd bet many of us have stopped.

3. Updating Laws - the Copyright laws and the penalities associated with them should be changed. I'm not advocating jail time for file-sharers - that's absurd, given the type of crime and the cost to society to lock people up - but let's make it easier to enforce the laws AND tailor them so that they are enforcable.

4. Lawsuits - This is the industries' stick. And yes, as the holder of intellectual property, you are the one primarily responsible for protecting it. It has always been that way. Let the suits continue. The record industry made a mess of the original ones, trying to get summary judgments against John Does and thinking they had supoena power. They have to follow the laws and leave this threat out thee.

5. Changing Business Model - much of what the music industry has done has been counter-productive. Their business model changed and they failed to change with it. They liked their protected (and in many cases, colusional and illegal) system for distribution of content. Well, that's gone. Continue to provide alternatives for digital distribution, which is far cheaper. Provide incentives for those who purchase in the brick-and-motar stores with items not available digitally. By embracing the digital world, they will have better control over it. Many people copied music simply because it was the easiest way to obtain it digitally. There really wasn't any other way. And instead of adapting, the music industry stuck their heads up their asses and screamed at Congress.

Taken as a whole, this is a framework for how to prevent the vast majority of illegal file-sharing. The other thing is to finally recoginze the true economic impact of the problem. All illegal file-sharing is bad, but only some small part of it truly costs an organization direct income. If I downloaded a song by Jon Bon Jovi today, it's bad and illegal. But it's not a direct income cost because I would have never purchased it anyway. That doesn't mean it's right - don't mistake my point - but it's not money out of someone's pocket. It is if I would have purchased it or I share it with someone else who would have. I believe that once the true economics of file sharing are better understood - without all the hyperbole and positioning - media companies will be better able to focus their efforts to maximize their returns from these efforts.

[Blackadar]

Originally Posted by JonInMiddleGA

I disagree. And although I'd personally like to see these thieves executed in a slow & painful manner, I sadly admit that isn't a realistic possibility.

What I do have as a goal is an acknowledgement that thieves are thieves, and that they should be treated as such. And putting them away for a significant length of time is a good start toward that end. As far as I'm concerned, they've forfeited their right to live free, by their inability and/or unwillingness to stop stealing from others.

I love Jon...at least he's consistent. "Kill em all and let God sort em out!"

[st.cronin]

Originally Posted by MrBigglesworth

Jon, no offense, and I mean this with all sincerity, this is the most ignorant thing I have ever read on this or any other message board. And I don't mean that in a personal attack kind of way, I mean that in an actual Merriam-Webster "lacking knowledge or comprehension of the thing specified". Frankly, I'm stupified. His rationale was right there in what I excerpted:


That's black and white, not really much anyone can add to that. And I don't think that can be argued. Of course there are some grey areas in the issue, but the fact that some if not most of the transactions benefit one party and do no harm to the other. Terms like 'halfwit', 'half a brain', and 'idiot', all while not offering a single refutation to any premise in the argument, do more to show the ignorance of the accuser than anything else.

Actually that can be argued... will try to do so later...

[Arles]

Pareto-optimal instances of infringing use -- which is to say instances that make some people better off, and no people worse off, than they would have been had the infringing not taken place -- are exceedingly common. Indeed, it seems to me that most copyright infringement is like that. People "steal" a file that, had they been unable to "pirate" it, they simply wouldn't have bought. In a case like this, the infringer is made better off, and the copyright holder is no worse off than he would have been had the infringement not taken place.

Using this logic, we should allow theft for phone, cable, hi-speed internet and pay per view. All of the fiber optics and bandwidth has already been setup for phone and cable with minimal cost per unit added. And pay per view has essentially no cost after the licensing fee is made (much like music and movies).

Marginalizing the impact of theft to somehow rationalize illegal file sharing seems like a dicey argument. You can continue this line of thinking even further into areas of low-cost items. If it's OK to infringe on copyrights for music, movies and pay per view, why not say it's OK to steal 5-cent pieces of gun from liquor stores or cups of soda from a restaurant? At what point does the cost to the business actually make theft "bad'?

[JonInMiddleGA]

Originally Posted by MrBigglesworth

Jon, no offense, and I mean this with all sincerity, this is the most ignorant thing I have ever read on this or any other message board. And I don't mean that in a personal attack kind of way, I mean that in an actual Merriam-Webster "lacking knowledge or comprehension of the thing specified". Frankly, I'm stupified. His rationale was right there in what I excerpted:


That's black and white, not really much anyone can add to that. And I don't think that can be argued. Of course there are some grey areas in the issue, but the fact that some if not most of the transactions benefit one party and do no harm to the other. Terms like 'halfwit', 'half a brain', and 'idiot', all while not offering a single refutation to any premise in the argument, do more to show the ignorance of the accuser than anything else.

Yes Biggles, it's black and white ... black and white one of the most ridiculous arguments that I've ever seen anyone seriously present. The "benefit one, do no harm to another" argument is 100% irrelevant to whether a theft takes place. It would do me no monetary harm for you to come on my property & steal a pecan lying on the ground was half rotten ... but I don't recommend you try it without permission. The "harm" lies in the act itself, the act of deciding that you are entitled to something that you have NO right to. None, nada, zip, zero. It ISN'T yours, therefore, you can take it without permission only as a thief. And it's this sort of sense of entitlement that has done such tremendous damage to this nation over the past 70 years or so.

No Biggles, I didn't bother to refute it. It's like trying to argue whether water is wet or fire is hot, so things are so obvious that arguing them is pointless. I'm sorry, but anybody who doesn't understand the simple concept behind this is a damned fool, and as has been noted, I am not a man who tolerates fools well nor often. It would have been, as a lot of things are, like trying to teach a pig to read -- it does you no good & annoys the hell out of the pig.