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Monday, June 27, 2005

File-Sharing Networks Can Be Held Liable, Court Rules

New York Times:

Internet file-sharing services will be held responsible if they intend for their customers to use software primarily to swap songs and movies illegally, the Supreme Court ruled Monday, rejecting warnings that the lawsuits will stunt growth of cool tech gadgets such as the next iPod. The unanimous decision sends the case back to lower court, which had ruled in favor of file-sharing services Grokster Ltd. and StreamCast Networks Inc. on the grounds that the companies couldn't be sued. The justices said there was enough evidence of unlawful intent for the case to go to trial. File-sharing services shouldn't get a free pass on bad behavior, justices said.
This is a decision I am not sure about. I have been reletively strong in my belief that illegal downloading and piracy are wrong, and that their should be penalties for that activitly. Certainly one can make a good case (and the lawyers for the entertainment industry did) that Grokster was focusing on the illegal activity and any legitmate use for their product was incidental to their revenue and marketing strategy. The 1984 Sony decision probably shouldn't be a 'get out of jail free card' if you can find any legitimate use for your product. One the other hand, I am concerned that the fear of stifling technology is a very real one. Anything can be used for an illegal purpose, and their are limits to what a complany can, and should, reasonably do to keep it's products from being attractive for those who wish to engage in such activities. There is also the very real fact that this decision will not substantially effect those who wish to engage in illegal activity, but may very substantially negatively impact those with legitimate uses for this sort of technology. In some ways, the fight behind the fight on the illegal downloading issue is even more compelling. I don't think we are getting a very good deal right now with our copywright laws, (here is some background on this issue). It is also unavoidably true that major media is probably less concerned with theft and piracy of their content then they are with in increase in competition from individuals who no longer require a powerful middle man for distribution and marketing. File sharing is a key componant that empower's individuals to compete with reletive equality with media corperations. No industry has ever welcomed more competition, and certainly record labels and movie studios are no exception to that. It seems to me that many of the propossed remedies for piracy are really about preventing legitmate competition. That doesn't mean we can ignore piracy however, or the very real fact that technology has dramatically changed the playing field and we do require new legislation to preserve the very real interests of everyone involved. Whenever technology has evolved new laws been created to balance the varies interests. It is concerning though that the media companies seem to have too much influence on government, and consumers and small scale producers not enough. I expect that may well change over time, as more people become producers, rather than just consumers of media and as the internet continues to evolve as a tool for political organization. Unfortunately, we may end up with a lot of bad law, that will be hard to undo, before that happens.


Anonymous tsykoduk said...

or the very real fact that technology has dramatically changed the playing field and we do require new legislation to preserve the very real interests of everyone involved

Errrrt. Hold the train there bucko!


Making laws really does not solve technical issues these days. For example, it is illegal right now to breach copyright restriction, however people do it.

The bad thing with this decision is that people who create items that "could" be used for illegal activities could very well be stifled.

Think of it this way - Now, it's possible to sue handgun manufacturers because there is a possiblity that handguns might be used in a crime.

This overturning of a very well thought out and constitutionally valid peice of jurisprudence scares me. What does this court think they are? Their purpose it to insure that laws follow the consitiution - not to make law.

But back to fileswappers. If folks have an issue with this, then they need to implement a technical fix. Techinical fixes cross borders, and do not take laws to inact.

6/27/2005 02:45:00 PM  
Blogger Dave Justus said...

I have heard it said, and agree, that the internet is the biggest change to publishing since Gutenberg.

Before Gutenberg no one saw any need or use for copywright at all.

Technology changed however, and people realized that in order to create incentives for people to create, we had to limit the right to copy the material that they created.

As other technologies have impacted this (and they have been far less signifigant to the ability to copy and distribute information than the internet has been) laws have evolved to try and keep a balance and continue to provide incentives to those who produce things.

Imagining that the immense power of the internet should not change our legislation on this at all is foolish in the extreme in my opinion.

I also strongly doubt that a purely technical solution, without any legislative backing will have any effect.

6/27/2005 03:06:00 PM  
Anonymous tsykoduk said...

Imagining that the immense power of the internet should not change our legislation on this at all is foolish in the extreme in my opinion.

Legislate all you want. I will just move to Sweden/Mongolia/Grand Cayman. Or at least my servers. :)

Unless the law is universal, it will not work on a medium that crosses borders literally at the speed of light.

Technology can (and will) be broken into/hacked/etc. Laws will be cirmvented. Giving dracoinian rights to something like the RIAA is not the anwser.

Telling people that if they develop new technology that might be used for illegal things they will be held liable - that is chilling. Would the iPod have been created under this legal precident?

This is an overturning of the laws that made VCR's legal - VCR maunfacturers now that can be held liable for their customers illicit use of their technology.

If Sony had lost the Betamax lawsuit, we would not have VCR's right now. What emerging technology are we going to loose now because of this?

It's been a bad week for freedoms.

6/27/2005 03:52:00 PM  
Blogger Random Gemini said...

I'll be blogging this as well, but I do agree with tsykoduk. I think there could have, in the past, been a technological solution to this situation that would have avoided the need for legislative and judiciary action. But the time for that is gone because the RIAA and MPAA have grown too impatient.

In my mind, all of this would have been avoided if the RIAA had simply starting an aggressive ad campaign the first time they reported that sales were down due to internet piracy. It would have cost them a bit of money, but it might have served to make them a lot more. Note that the mother of the 12 year old girl that was sued by the RIAA had no idea that what she was doing was illegal, because she paid for the service at the time. If she'd seen an ad in the local mall telling her this, in all likelihood, she would have discontinued her account with Kazaa/Morpheus/Whoever and gone back into the record store.

The other option, and the more fair one in my mind, was to extend the Betamax ruling to apply to digital storage devices as well. This would mean that every time you buy a hard drive, ram chip, blank media disc of any form, ipod, mp3 player or other such device, you would be giving a portion of that money to the RIAA and they would be justly compensated for what you had the potential to do with said device. Yes, it would make those devices more expensive, but the RIAA would have their fair share of the pie.

The thing is, they don't want their fair share anymore. They want the whole thing. They are attempting to get it through legislation and for some reason, SCOTUS has become so blind to protecting the rights of average citizens, that it genuinely frightens me. I think they will get exactly what they've wished for. But wishes can be dangerous things, and like all wishes, the consequences should be considered with great care.

6/27/2005 07:52:00 PM  
Blogger The probligo said...

The decision is interesting indeed.

Not the least because of the reactions that it has engendered.

For example, out of tsykoduk's contribution must come the acknowledgement that any "traditional" solution must either -

* be applied globally. With the likes of Cayman Is., even little Niue, or the worst of Zimbabwe looking for ways to raise money the ability of controlling access to "information" that is subject to traditional copyright will become impossible. I have heard in the past few days that there are moves afoot to digitise entire libraries for free access.


* restrict the freedoms of people in individual nations. Exactly the consequence that others see here...


* result in an over-reaction against the use of the 'Net to disseminate information. Unlikely that one I know.


* result in the corporate ownership of all information. This is tenuous at best in my mind being more Luddite than Nerd. I listened last night to an interview in which the future development of Google was discussed. The control of internet advertising through Google was extended to, as an example in this instance, Google controlling access to information on the 'net without payment of a "retrieval fee". Very easy to put in place right now with existing technology.

There has been much "learned" debate that I have come across ranging from the definition of "theft" in relation to using ipods to retrieve and play copyrighted music through to the need for copyright in law at all.

In the context of this present ruling, again from the little I have read and understand about this decision, tsykoduk is right with his comparison to the gun laws. But, how does this depart from many other previous SCOTUS decisions that impinge upon the right to use versus copyright control? Not a great deal I suggest.

At this point I also pick up on Dave's rejoinder and the debate starts to impinge upon the tail end of my post on "public arena images". The comparison with the invention of the printing press is very valid. Not just the 'Net, ALL of the recent advances in communication and those which will appear over the next five or so years will require the total rethink of international agreements on intellectual property, copyright, and the concepts of the right to own for profit.

We truly live in interesting times.

6/28/2005 02:15:00 AM  
Blogger Dave Justus said...

I think that legislative rules can properly balance the interests of major media, independent producers and consumers, even though they are not fully embraced by other countries.

It is probably true though that if the legislation enacted is perceived as 'fair' people will find ways around it.

To a large degree, civil society is based as much upon social approval as it is direct enforcement of the law. With Prohibition we certainly saw the results when law is our of step with what a good amount of the populace thinks is fair and correct.

I don't have an exact solution for the problem. It seems that their does need to be some form of tradeoff made here. I have my doubts that this will happen properly with the disproportionate influence that media industry has with congress, however if there is to be any hope for it to happen in a way we like, consumers need to realize that an equitable compromise needs to be made. If the advocates for consumers continue to insist that no changes should be made, the media companies will get their wishlist by default.

6/28/2005 09:05:00 AM  
Anonymous tsykoduk said...

Even if our goverment is able to come up with the most fair law dealing with this in the world - it's just our goverment. The rest of the world might or might not follow this law.

That is the crux of trying to legislate the internet. It just does not work. There will always be data havens that will allow folks to host their servers and provide the illicit materials that the consumers want. Laws will not stop this.

Technical means will slow this down, but I think that these problems requre a new economy rather then new laws. We are seeing the starts of this in the software industry. People releasing free code and making money off it's support. Apple using the BSD engine to power their computers, and giving a lot back to the FOSS communitys.

We need education and new-think not laws that do not work. We are truly in a global culture now, and to try and get a local law to apply globally simply does not work. And until we do take over the world, any laws we interact are local.

6/28/2005 01:13:00 PM  
Blogger Dave Justus said...

We have had fairly good success getting other nations to go along with international patent and copyright standards in the past. Sure, there will be outliers, and sure, there will always be some who pirate, but I think, if we can come up with a fair deal for consumers they will be a small minority and producers of material will be adequately compensated.

I expect that a new economy will play into the eventual solution, but any form of viable economy requires protection of property rights. I also am pretty confident we will eventually get to an equitable solution, eventually the markets, consumers, and increasingly diverse producers will demand it. The question for me really is how long it will take, and the laws we enact now can either help or hinder that process.

6/28/2005 01:57:00 PM  

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