Wednesday, June 29, 2005

Expert: Grokster Decision Won't Negate Sony 'Fair Use' Law

The entertainment industry has been fighting technology in court since the invention of the player piano. American courts have the unenviable job of preserving rights in intellectual property and maintaining an environment where innovation and ideas can flourish. It's a constitutional mandate that in this decision may have been misread.

“The Supreme Court's decision Monday that Grokster and other file-swapping services can be held liable for illegal downloading doesn't overturn the 'fair use' doctrine established in the early 1980s when consumers started buying videocassette recorders to copy television shows and movies, according to a Washington-based copyright attorney.

However, how the law is interpreted by the courts will likely change, due to the massive use of digital technology to download, copy and share millions of music and video files, said Ralph Oman, former federal register of copyrights and currently an attorney in the intellectual property group of Dechert LLP, a Washington-based law firm.

The case of Sony Corp. versus Universal Studios, which established the fair use doctrine, 'is pretty much intact in, perhaps, a way limited by the facts,' Oman said. 'Three of the justices said the Sony decision is irrelevant in this case and three said [Grokster] had met the Sony criteria and by specific acts had violated those criteria of the Sony decision.'The court found that Grokster wasn't "merely selling a device that could be used for infringing activity. It was a device or software that was designed to encourage the illegal activity," Oman said.…

In that case, Grokster couldn't claim that its file-swapping service represented fair use as was deemed legal in the Sony vs. Universal decision.

Oman was one of a group of attorneys and law professors that filed a "friend of the court" brief with the Supreme Court, arguing the view that "Grokster is trading on the illegal activity of its subscribers," he said.

Removing competitors, building barriers to entry, doesn't solve the industries underlying problem. It just treats one of the symptoms.

Companies like Grokster aim to "induce the infringing activity of their customers, and they benefit from that inducement in terms of being able to sell advertising to increase the number of people who are viewing their site," Oman said.

Grokster's business plan "requires acts of infringement on a large percentage scale," and that use is "not shielded by the laws limiting liability in the Sony case," he said.

The key difference between the two cases is that the video players and recorders in the Sony case were analog devices. Owners couldn't easily use their recorders to produce hundreds or thousands of movie videos for their friends or for anyone willing to pay for them.”

So now they'll try to stuff the genie back into the bottle, right after they unscramble the eggs they had for breakfast.

The entertainment industry has been fighting technology in court since the invention of the player piano. American courts have the unenviable job of preserving rights in intellectual property and maintaining an environment where innovation and ideas can flourish. It's a constitutional mandate that in this decision may have been misread.

I think, that even if you could unscramble already eaten eggs, there's no one who will want any. You've got to sell what people want to buy, or persuade them to want what you have to sell. Removing competitors, building barriers to entry, doesn't solve the industries underlying problem. It just treats one of the symptoms.

BitTorrent files of Grokster & Betamax legal documents (from outragedmoderates.org)

On Saturday, I created a BitTorrent file of all of the briefs submitted to the Supreme Court regarding the MGM v. Grokster case, which the Court will hear tomorrow. Since then, over 170 people have downloaded the Grokster briefs, which adds up to over 378,760 pages of court documents downloaded in two and a half days. (Update - as of midnight on 4/1/05, over 580,000 pages of Grokster briefs had been downloaded.)

Below are BitTorrent links for the Grokster briefs and two new torrents: one containing documents from the 1984 Betamax case, and one containing mp3 audio files of the oral arguments in that case. (Click here for information about how to install a BitTorrent client; click here for more BitTorrent files containing government documents).

MGM v. Grokster Briefs [
BitTorrent Link]
Contents: All of the briefs submitted to the Supreme Court re: MGM v. Grokster
Size: 20.7 MB (74 files)
Source: U.S. Copyright Office [copyright.gov]

Betamax Legal Documents [BitTorrent Link]
Contents: Court documents and briefs from the Supreme Court's 1984 Betamax decision
Size: 4.7 MB (42 files)
Source: the Electronic Frontier Foundation's Betamax case document archive [EFF.org]

Betamax mp3s [BitTorrent Link]
Contents: mp3s of the oral arguments in the Supreme Court's 1984 Betamax decision
Size: 52.7 MB (3 files)
Source: the Electronic Frontier Foundation's Betamax case document archive [EFF.org]


Thanks to these folks, and everyone else, who linked to the Grokster briefs torrent:
"Grokster Briefs demonstrating the point of p2p" [Lessig.org]
"Grokster briefs torrent" [BoingBoing.net]

I'm taking the Chinatown bus down to D.C. tonight, with hopes of hearing part of the oral arguments tomorrow morning. Check back here Wednesday for some blogging on Grokster. Journalists/bloggers interested in talking to someone about the political uses of P2P, please email me at info@outragedmoderates.org and leave a phone number.

http://www.eweek.com/article2/0,1895,1831982,00.asp?kc=ewnws062805dtx1k0000599
con·cept: Expert: Grokster Decision Won't Negate Sony 'Fair Use' Law