This show takes a shot at explaining the similarities between the landmark Universal vs. Sony (Betamax) case of 1984 and the current MGM vs. Grokster case that went in front of the Supreme Court last summer.
I only touch upon it briefly in my show. There’s a more complete explanation on the website.
Songs From The Commons #6
The point then, and now, is that, historically, in this country, we choose to criminalize the misuse of a technology, rather than criminalizing the technology itself. Guns, for example, are only made for killing. Killing and maybe target practice. It’s what they do. Depending on the circumstances surrounding when the killing takes place, such killing is legal or not. But do we hold gun manufacturers responsible for when gun technology is misused? Of course not. The concept is comical. In fact, legislation was recently passed to protect gun manufacturers from such liability. According to White House Press Secretary Scott McClellan, even President Bush “believes that the manufacturer of a legal product should not be held liable for the criminal misuse of that product by others.”
Unfortunately, when the Supreme’s had a chance to decide MGM vs. Grokster on these grounds, it chose to do something else – to avoid these issues entirely, and create a new kind of indirect infringement: active inducement. Active Inducement takes place if someone intends to make another person infringe and then takes active steps to encourage it.
The court basically said there were two types before (contributory and vicarious) and now there’s a new, third kind, called “inducement.” That’s what the court sent back to the Central District of California Court (9th Circuit) to determine if the defendants were actively inducing infringement.
So there used to be just two kinds of “indirect” infringement, vicarious and contributory.
“Vicarious” is when you’re supervising people and making money from it, like at the Flea Market, if the owners of the Flea Market knew that stolen goods were being sold there. (A CA court ruled that Napster did this.)
“Contributory” infringement is where you’re supplying the means with knowledge that it will be used illegally. Like if I rented a bunch of CD burners to a bootleger and knew what he was going to do with them. Now, after Grokster, there’s a third, where I intend to make you infringe and take active steps to encourage it. That’s the test laid out by the decision…
Note: Although there was a development last week in MGM vs. Grokster, where Grokster settled, agreed to shut down, and agreed to pay $59 million in damages, Grokster was not the only named defendant in the case. StreamCast, Sharman Networks (distributor of Kazaa), and the founders of Kazaa are still in litigation.
Here is the full text of the article in case the link goes bad:
http://www.mondoglobo.net/thecommons/?p=11
A Better Introduction to Grokster – A Modern Day Sony Betamax Case
In this week’s installation of The Grokster Chronicles, I will explain how the Grokster case is really just a modern day revisiting of the principles of the historical Betamax case. The “Betamax” case refers to Universal vs. Sony, in which the Supreme Court decided that a company was not liable for creating a technology that some customers may use for copyright infringing purposes, so long as the technology is capable of substantial non-infringing uses. Said another way, the court decided that, when a technology has many uses, the public cannot be denied the lawful uses just because some (or many or most) may use the product to infringe copyrights.
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The court weighed the substantially positive noninfringing fair use right of a family being able to timeshift a program and watch it together later against the potential misuse of a person making 300 copies of the television program and selling them (piracy). Keeping this definition in mind, it becomes easier to understand how such judgements clearly apply to the Grokster case. Within the millions of files traded over a Kazaa-based P2P network, some infringe, while others clearly do not.
The point then, and now, is that, historically, in this country, we choose to criminalize the misuse of a technology, rather than criminalizing the technology itself. Guns, for example, are only made for killing. Killing and maybe target practice. It’s what they do. Depending on the circumstances surrounding when the killing takes place, such killing is legal or not. But do we hold gun manufacturers responsible for when gun technology is misused? Of course not. The concept is comical. In fact, legislation was recently passed to protect gun manufacturers from such liability. According to White House Press Secretary Scott McClellan, even President Bush “believes that the manufacturer of a legal product should not be held liable for the criminal misuse of that product by others.”
Unfortunately, when the Supreme’s had a chance to decide MGM vs. Grokster on these grounds, it chose to do something else – to avoid these issues entirely, and create a new kind of indirect infringement: active inducement. Active Inducement takes place if someone intends to make another person infringe and then takes active steps to encourage it.
The court basically said there were two types before (contributory and vicarious) and now there’s a new, third kind, called “inducement.” That’s what the court sent back to the Central District of California Court (9th Circuit) to determine if the defendants were actively inducing infringement.
So there used to be just two kinds of “indirect” infringement, vicarious and contributory.
“Vicarious” is when you’re supervising people and making money from it, like at the Flea Market, if the owners of the Flea Market knew that stolen goods were being sold there. (A CA court ruled that Napster did this.)
“Contributory” infringement is where you’re supplying the means with knowledge that it will be used illegally. Like if I rented a bunch of CD burners to a bootleger and knew what he was going to do with them. Now, after Grokster, there’s a third, where I intend to make you infringe and take active steps to encourage it. That’s the test laid out by the decision.
The trouble with the supremes defining a new type of indirect infringement is that it leaves the questions of “vicarious” and “contributory” infringement wide open, as well as the test of “substantial non-infringing uses” given to us in the Betamax decision. (So no one knows what the rule would have been on those.)
The opinion also contained two “concurrences.” What are concurrences? Well, in a formal ruling, there is a majority opinion which lays down the law. It includes what is called a “holding” — what the court held the law to be. Then there are secondary opinions included in the ruling when judges want to add commentary. They are either “concurrences” (which agree with the holding but perhaps for different or additional reasons) or “dissents” (which disagree with the holding and reasoning of the majority).
Typically, with concurrences, they are sections that the majority didn’t support. In Grokster, you had the majority 9-0 but each concurrence only had 3 votes. If either had gotten 5 votes, it would have been part of the majority. Although these two concurrences conflict with each other, the judges writing them agreed generally on the opinion (unanimously in fact).
So, for the two concurrences that received three votes each, one said that the Sony Betamax test of “substantial non-infringing uses” was more than satisfied. The other said that Sony should be revisited and overturned.
So you may say “well, it would certainly be hard to prove that, until you look at the decision a bit closer. In Grokster, the supreme court said that even using the name “-ster” as in Grokster showed intent to induce infringement, because it was similar to Napster.
The tech community knows that “ster” doesn’t have this kind of meaning at all. It’s more like a name for doing fun things — Friendster, a social network and Feedster, and RSS syndication feed service, certainly have nothing to do with contributory copyright infringement. Google’s Gmail even uses “ster” as their default name suggestion when someone tries to get an email address and their name on its own is taken, rather than applying a number to the end.
This kind of confusion about technology and computer culture means it will be easier to sue companies and imply that they are encouraging people. Then its costly to defend — because you’re going to have to go to trial every time, costing you millions. You may win eventually, but who cares by then, because you’re out of business.
And what does this mean to the average consumer? It means that you’re not going to get as much new cool technology, and when you do get it, it’s going to cost you more because of the added legal risks now associated with software development in general.
Note: Although there was a development last week in MGM vs. Grokster, where Grokster settled, agreed to shut down, and agreed to pay $59 million in damages, Grokster was not the only named defendant in the case. StreamCast, Sharman Networks (distributor of Kazaa), and the founders of Kazaa are still in litigation.
Special Thanks to Jason Schultz at the EFF for double checking the technical accuracy of my legal analysis.
Songs
1.
Slipping Away v. 2.0 Studio
by Lisa Rein.
http://www.lisarein.com/slippingaway2.0.html
Available under an Attribution 1.0:
http://creativecommons.org/licenses/by/1.0/
2.
one moment (cdk play it cool mix)
by cdk
http://ccmixter.org/media/files/cdk/2884
Available under the: Attribution Non-commercial Share Alike v 2.5 license:
http://creativecommons.org/licenses/by-nc-sa/2.5/
uses samples from:
midnight bliss dub samples by cdk
Moment of Green by Antony Raijekov
Blues and misc by Burnshee Thornside
3.
“Wake Up” from The Time is Now
by Inna Crisis
http://www.jamendo.com/album/352/
Attribution Non-commercial Share Alike v. 2.0:
http://creativecommons.org/licenses/by-nc-sa/2.0/
4. Theme Song to this show –