MGM v Grokster

[cquark]

The Supreme Court is hearing arguments on the MGM v Grokster case this week. While as an individual P2P product, Grokster isn't important, this case could potentially reverse the Universal v Sony Betamax case that has protected innovators for decades. Without Betamax, makers of VCRs, CD/DVD burners, photocopiers, and network hardware and software would all be susceptible to lawsuits on behalf of the entertainment industry for aiding copyright infringement.

It looks like the SCOTUS has some understanding of the implications of reversing Betamax, and MGM is doing a poor job arguing against the drastic damage to America's ability to innovate if Betamax were overturned. From http://blogs.law.harvard.edu/tka/2005/03/29#a53

At least some of the Justices, Scalia in particular, seemed troubled by how an inventor would know, at the time of inventing, how its invention might be marketed in the future. How, some of the Justices asked MGM, could the inventors of the iPod (or the VCR, or the photocopier, or even the printing press) know whether they could go ahead with developing their invention? It surely would not be difficult for them to imagine that somebody might hit upon the idea of marketing their device as a tool for infringement.

MGM's answer to this was pretty unsatisfying. They said that at the time the iPod was invented, it was clear that there were many perfectly lawful uses for it, such as ripping one's own CD and storing it in the iPod. This was a very interesting point for them to make, not least because I would wager that there are a substantial number of people on MGM's side of the case who don't think that example is one bit legal.

You can find up to date information at the SCOTUS blog
http://www.scotusblog.com/movabletype/archives/2005/03/court_conflicte.html

 

[dmcowen674]

Repost, but that is OK, like the Blog links. :thumbsup:

It's a matter of will the USSC blame the trigger or the finger.

Technology in the U.S. will live or die.

 

[PatboyX]

Originally posted by: dmcowen674
Repost, but that is OK, like the Blog links. :thumbsup:

It's a matter of will the USSC blame the trigger or the finger.

Technology in the U.S. will live or die.

its very hard to "remove" technology once it has become commonplace.
i dont know that its ever been done.
id love it if someone had an examples.

 

[dmcowen674]

Originally posted by: PatboyX

Originally posted by: dmcowen674
Repost, but that is OK, like the Blog links. :thumbsup:

It's a matter of will the USSC blame the trigger or the finger.

Technology in the U.S. will live or die.

its very hard to "remove" technology once it has become commonplace.
i dont know that its ever been done.
id love it if someone had an examples.

Dark Ages

Innovations of the time were banned.

 

[Miramonti]

Any idea when a ruling is expected?

 

[dmcowen674]

Originally posted by: jjsole
Any idea when a ruling is expected?

I'll ask a friend of mine who is there tonight after work when a decision might be expected.

Edit: No ruling expected until July.

 

[cquark]

Originally posted by: PatboyX
its very hard to "remove" technology once it has become commonplace.
i dont know that its ever been done.
id love it if someone had an examples.

The worry about MGM v Grokster isn't so much about current technology, but about how such a ruling will suppress future innovations.

Expanding copyright and patent laws are already slowing American innovations, playing a part in the collapse of the 90s tech boom. When cable TV first came out, broadcasters sued the nascent cable TV industry for copyright infringement for rebroadcasting their shows. The legal solution then was to carve an exception for cable TV in the copyright statute, creating a mandatory licensing scheme, where broadcasters couldn't prevent cable TV from rebroadcasting but also setting a license fee that cable TV companies had to pay.

That sort of compromise is in the past. A few years later, Satellite TV did not get such a deal, which is why you couldn't (and in some areas still can't) get local stations for many years. In more modern times, entities like Napster, mp3.com, and so forth were simply destroyed by the entertainment industry.

 

[cquark]

Matthew Inglesias makes this insightful comment on his blog:

The idea that intellectual property law should have the protection of intellectual property as its purpose rather than as the means used toward the end of overall social betterment is a serious error that the content industry has been remarkably successful at inducing in American society.

 

[cquark]

More from Matthew Iglesias, who really gets the point of copyright and patent laws. It's not surprising that organizations of corporations like RIAA and MPAA want to profit forever without any additional effort from their products, but I see no reason why we should pass laws to help them do so.

As he points out, the point of copyright and patents is to increase the production of new inventions, not guarantee profits on old ones forever.

Slapnose notes that the RIAA and MPAA claim P2P networks, "facilitate and promote theft and are a threat to their business, despite the fact that their sales of CDs and other music products rose 2 percent last year." This is, of course, faster than the rate at which the population is growing. But even making arguments of this sort concedes too much to the content industry (and, to be fair, this growth came after several bad years). As I've been urging, protecting the profits of the record industry is not the appropriate aim of intellectual property policy. Rather, the point of intellectual property law is to ensure that adequate incentives continue to exist for the production of new works.

Perhaps readers will write in to correct me, but I don't believe I've even heard anybody try to argue that fewer new songs are being written or recorded or that people are listening to less music than they used to. It's the availability of new music for consumption that we're supposed to be protecting here. P2P, through both authorized and unauthorized uses, obviously leads to an uptick in the number of people who listen to any given song. You would need a pretty huge decrease in the quantity of new music being recorded (and, as I say, no sign there is such a decrease at all) in order to make the case that the progress of musical arts was being seriously impeded here. P2P probably is a problem for the major record companies, both because infringement will reduce their sales potential, and also because it will make it easier for public domain and independent works to be distributed and publicized. This, however, simply isn't something IP law is supposed to prevent. The health of music-production as an endeavor is not at all the same thing as the financial status of the RIAA's membership. As I say, if there's evidence that thanks to copyright infringement kids aren't forming bands anymore, artists are quitting the business in droves to go to law school, or clubs are finding that nobody wants to go on tour anymore then that would be interesting and relevant, but I'm not familiar with any such evidence. "Rock star" isn't exactly a really crappy profession that people would be unwilling to take on if you couldn't get rich doing it.

UPDATE: See also Mark Cuban thinking along the same lines. To re-iterate my extremist line against even Cuban, however, aggregate sales aren't really all that relevant. If the music is getting made, and the music is getting listened to, well then, that's a healthy IP environment. The creation and consumption of new works is the end, sales are merely a means to that end.

 

[Zebo]

How did this case ever make it SC??? It's so obvious this is total BS. love that example with the printing press.

 

[silverpig]

Originally posted by: cquark
More from Matthew Iglesias, who really gets the point of copyright and patent laws. It's not surprising that organizations of corporations like RIAA and MPAA want to profit forever without any additional effort from their products, but I see no reason why we should pass laws to help them do so.

As he points out, the point of copyright and patents is to increase the production of new inventions, not guarantee profits on old ones forever.

Slapnose notes that the RIAA and MPAA claim P2P networks, "facilitate and promote theft and are a threat to their business, despite the fact that their sales of CDs and other music products rose 2 percent last year." This is, of course, faster than the rate at which the population is growing. But even making arguments of this sort concedes too much to the content industry (and, to be fair, this growth came after several bad years). As I've been urging, protecting the profits of the record industry is not the appropriate aim of intellectual property policy. Rather, the point of intellectual property law is to ensure that adequate incentives continue to exist for the production of new works.

Perhaps readers will write in to correct me, but I don't believe I've even heard anybody try to argue that fewer new songs are being written or recorded or that people are listening to less music than they used to. It's the availability of new music for consumption that we're supposed to be protecting here. P2P, through both authorized and unauthorized uses, obviously leads to an uptick in the number of people who listen to any given song. You would need a pretty huge decrease in the quantity of new music being recorded (and, as I say, no sign there is such a decrease at all) in order to make the case that the progress of musical arts was being seriously impeded here. P2P probably is a problem for the major record companies, both because infringement will reduce their sales potential, and also because it will make it easier for public domain and independent works to be distributed and publicized. This, however, simply isn't something IP law is supposed to prevent. The health of music-production as an endeavor is not at all the same thing as the financial status of the RIAA's membership. As I say, if there's evidence that thanks to copyright infringement kids aren't forming bands anymore, artists are quitting the business in droves to go to law school, or clubs are finding that nobody wants to go on tour anymore then that would be interesting and relevant, but I'm not familiar with any such evidence. "Rock star" isn't exactly a really crappy profession that people would be unwilling to take on if you couldn't get rich doing it.

UPDATE: See also Mark Cuban thinking along the same lines. To re-iterate my extremist line against even Cuban, however, aggregate sales aren't really all that relevant. If the music is getting made, and the music is getting listened to, well then, that's a healthy IP environment. The creation and consumption of new works is the end, sales are merely a means to that end.

:thumbsup:

 

[dmcowen674]

Originally posted by: Zebo
How did this case ever make it SC??? It's so obvious this is total BS. love that example with the printing press.

In case you didn't notice the RIAA?MPAA has taken over many Countries around the world with their agenda.

If the USSC takes their side their mission will be complete.

 

[cquark]

The NY Times has a good article on this case, focusing on the history of 20th century technology vs copyright conflicts from player pianos to the VCR.

The author Hal Varian seems to understand the sensible position on this case in his summary paragraph from http://www.nytimes.com/2005/04/07/busin...nnlx=1112893395-undgoqtmZRJ6lpnHtR6CbA

With respect to technology, the Sony decision got it right: encourage technologies that create more total value. Then, let companies fight to find business models that deliver that value to consumers. They can be awfully creative when they are forced to be.

 

[cquark]

What does the Grokster decision imply for BitTorrent?

Legal scholars are already thinking about this issue, like Mark Shultz from SIU law school at http://blog.ericgoldman.org/archives/2005/06/what_happens_to.htm

BitTorrent and its creator, Bram Cohen, should be just fine. Some services that use BitTorrent to promote infringing file sharing for commercial gain, like the now defunct Suprnova.org, are most likely in trouble. The difference in results points to one fortunate aspect of today?s decision. The Court?s holding focuses on ?bad actors,? not ?bad technology.? In that respect the safe harbor of Sony still stands. (Whether the prospect of having to defend oneself as a ?good actor? will stifle technological development is a subject for another post or a law review article).

Why are BitTorrent and its creator okay? I've researched BitTorrent's development for a forthcoming article on copyright and the jam band community. Jam bands are bands like the Grateful Dead and its vast and diverse progeny who allow fans to record concerts and exchange the recordings legally. Cohen has said he developed BitTorrent in response to the needs of his friends in the jam band community who were legally downloading shows. One of the earliest version?s of the BitTorrent FAQ indicates it was being developed for legal trading by "etree" (the online community at the center of the jam band world). The FAQ reads:

?BitTorrent's customer is etree. Etree is a loose-knit community of people who distribute live concert recordings online. They never charge money, and only distribute recordings of bands which give permission. Etree suffers from not having nearly as much upload offered as there is download demand, a problem BitTorrent is intended to solve.?

From what I have been able to determine, the files used to test BitTorrent during development were legally shared jam band files. Cohen?s innocent intent is significant under today?s ruling.

In summary, it seems that BitTorrent is fine, but sites offering links to infringing torrents are likely in trouble under the SC ruling.

Mark's also written about trackerless bittorrent and bittorrent searching at
http://blog.ericgoldman.org/archives/2005/06/more_on_bittorr.htm

 

[cquark]

For those who want all the news about the MGM v Grokster decision, check Ernest Miller's roundup of postings at http://www.corante.com/importance/archi.../28/the_day_after_grokster_roundup.php

On of the most interesting posts is Ed Felten's look at the impact of the decision on the future of technology:

Few tears will be shed if Grokster and StreamCast are driven out of business as a result of the Supreme Court?s decision. The companies are far from lovable, and their technology is yesterday?s news anyway.

A much more important issue is what the rules will be for the next generation of technologies. Here the Court did not offer the clarity we might have hoped for, opting instead for what Tim Wu has described as the Miss Manners rule, under which vendors must avoid showing an unseemly interest in infringing uses of their products. This would appear to protect vendors who are honestly uninterested in forstering infringement, as well as those who are very interested but manage to hide it.

...

So the stage is set for the next phase of the copyright/technology litigation war. The music and movie industries don?t want to live in a world where BitTorrent is allowed to exist. The Supreme Court didn?t give them enough yesterday to kill BitTorrent. So the industries? goal will be to stretch the Grokster rule, just as they tried to stretch the Sony rule before hitting a sandbar in the Grokster district court. We?ll see a careful campaign of litigation against peer-to-peer services, trying to gradually stretch the noose of inducement liability until it fits around BitTorrent?s neck. Failing that, we?ll see a push to get Congress to codify (the industries? interepretation of) the Grokster rule.

The real winners, as usual, are the copyright lawyers.