January 25, 2005 12:13 PM PST

File swapping vs. Hollywood

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infringement on their networks, the companies should be held legally liable for that activity.

Two 9th Circuit lower courts have disagreed. Like photocopiers or VCRs, the companies' peer-to-peer software can be, and is, used for legal purposes such as selling music or video games, the courts said. They've interpreted the Sony precedent to mean that file-swapping companies such as Grokster and StreamCast can distribute their peer-to-peer products without legal liability for the widespread copyright infringement of people using the software.

In their brief to the nation's top court, the entertainment companies said those lower courts had misunderstood the balance required by the original Sony decision to protect copyrights as well as technological innovation, however. They charge that at least 90 percent of the activity on Grokster and StreamCast's networks is illegal and that the companies are well aware of that, even if they don't control individual trades.

The groups asked the court to ratify a new legal test, looking at whether a company's business is predominantly devoted to or supported by their customers' copyright infringement, to decide whether or not it should be held legally liable.

"When your business is predominantly devoted to copyright infringement, you're on the hook."
--Donald Verrilli, attorney

"When your business is predominantly devoted to copyright infringement, you're on the hook," said Donald Verrilli, an attorney working with the entertainment companies. "When you protect copyright, you innovate legitimately. It is the illegitimate abuse of technology that we are opposed to."

A handful of diverse organizations joined the entertainment companies in their appeal to the Supreme Court on Monday, occasionally making for some strange bedfellows.

In a lengthy brief, the Office of the Solicitor General agreed with the entertainment companies.

"While P2P technology unquestionably can be employed for a variety of legitimate purposes without giving rise to rampant copyright infringement, the record...suggests that (the file-swapping software companies) have built their particular P2P networks around the 'draw' of massive copyright infringement," the solicitor general's brief read. They "cannot evade liability...merely by pointing to other, legitimate uses of the technology."

In addition to the solicitor general's office, a group of conservative, family and Christian organizations that are often deeply critical of Hollywood and record label releases joined the anti-P2P chorus.

Those groups, which included the Christian Coalition, the Concerned Women for America, Morality in Media and others, wrote that the lower-court decisions relieving file-swapping companies of legal liability could lead to a "proliferation of anonymous, decentralized, unfiltered and untraceable peer-to-peer networks that facilitate crimes against children and that frustrate law enforcement efforts to detect and investigate these crimes."

The Business Software Alliance, the Progress and Freedom Foundation, a large group of state attorneys general, artists including the Eagles and Reba McEntire, and a group of law professors also supported the RIAA and MPAA in their arguments.

A separate group of "neutral" parties also filed arguments on various issues surrounding the case.

U.S. Sens. Patrick Leahy, D-Vt., and Orrin Hatch, R-Utah, took issue with the characterization the file-swapping companies' attorneys made of Congress' role in the recent copyright debates.

A larger group of Internet companies (including CNET Networks, publisher of News.com) wrote that it did not approve of copyright infringement on the file-swapping networks but asked the court to retain the Sony decision because it had led to considerable technological innovation over the years.

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Christian Coalition and Slippery Slope
The argument presented by the Christian Coalition is outright example of a slippery slope argument. In critical thinking, a slippery slope is an argument that assumes that if one thing happens, then another thing and another thing will automatically happen. That is not always the case and should not be assumed under most circumstances. Thus, the Christian Coalitions statement should be completely ignored in this case. I am a very devout Christian but that does not mean I agree with everything the Christian Coalition decides to say. Also, any other aspects of the arguments of the RIAA or MPAA that can be considered slippery slopes should also be ignored. The Supreme Court should base their decision this summer on what Grogster has done thus far and whether the rules of the Sony case can be applied. It is my hope that the Supreme Court can see through much of the smoke and mirrors.
Posted by (2 comments )
Reply Link Flag
Slope Slides Both Ways
Using the slippery slope argument against the plaintiffs in Grokster is dangerous. Both the defendants and their allies, such as NetCoalition, use a slippery slope argument, saying that any imposition of liability on a P2P software maker could lead to a chilling of technology. Yet all the Grokster case would do is impose liability on for-profit companies whose revenues rely on the desire of millions of users to access free content without the authorization of the copyright owner. That's miles up the slope from a chilling of P2P itself.
Posted by P Ross (13 comments )
Link Flag
Pay policians enough money, they'll do anything
This is the same crap that we have to just learn to live with. Big money always wins. One day the people will have to take matters into their own hands.
Posted by bobby_brady (765 comments )
Reply Link Flag
Which has more power of politics
Money or votes. Politicians go where the money is, but money doesn't do them any good if they can't get elected or re-elected. If you don't like what you politition is doing don't vote to put him back in office. Money is power and so is voting.
Posted by System Tyrant (1453 comments )
Link Flag
Hollywood need to develop counter-technology. Period. Not...
...buy laws. They need to innovate technologically, not legally. Adopt better business models, not guard outmoded revenue streams. C'mon Hollywood, get creative outside of the courtroom.
Posted by ordaj (338 comments )
Reply Link Flag
illegitimacy starts technology!
This case is HUGE!!! Cant be stressed enough! In my opinion, and the opinion of many others, if this is overturned, it would substantially set back technology. We would certainly no longer be the leader of the technology revolution (something that could already be questioned.) But if this is approved, it would kill off many new technological advances& They all start out illegitimately.

If they get what they wanted, the radio, the tape, the CD, mp3s, digital music, the VCR, and even TIVO would not exist because at one point ALL of these devices were seen as illegitimate.
Posted by (1 comment )
Reply Link Flag
I agree
regardless of what the arguments are on both sides. The RIAA and the MPAA, if they win, will try to control every aspect of media. They will make VCRs illegal, CDs will have to be played in special CD players, DVDs will need to be played in something similar as a CD, MP3s will be considered illegal. Hell satellite radio will be eliminated because you can now download music off of that. So much for your $350 iPod...if this passes you will no longer be able to use it cause all of the music stores will be shut down and controlled by the RIAA they will charge $5 a song and your precious musicians will only see the normal 1% of the profits. Why can't such talented people, musicians, see that they are being robbed blind. Hell my father informed me of a band that held a private concert in the desert in Arizona and charged $20 a head and with that charge you received a CD of the entire concert burnt on disc by one of the band member's sons. When all was said and done the RIAA tried to sue them for stealing their own music stating that THAT was copyright infringement. This is just a fine example of a business getting way to much power. Just wait until they sue the wrong person and they countersue them for Civil right infractions for scanning their computer without a warrant and using spyware to do it. They will all serve 20 years minimum in jail for that charge. Long live technology....may it bury the ones who oppose it.
Posted by imkain (66 comments )
Link Flag
Skype would be outlawed too
if p2p is found made illegal.
Posted by bobby_brady (765 comments )
Reply Link Flag
Think about the direction that technology is going
Using Grokster, Kazaa, Morpheus, or any other P2P program for downloading music and movies is no differant from downloading music and movies to your radio or tv. Especially since radio and tv are now recording the transmissions. The cable companies, radio stations, and Hollywood are all the fascillitators just as any P2P software company. Kazaa makes a song available to millions of computers just as the Sci-Fi channel makes Stargate available to millions of tv's. Don't kid yourself, the television IS turning into a dedicated computer....even to the point of surfing the internet. NBC, CBS, ABC, and all the others are just as guilty as Kazaa.

The question of new releases:
Well, this isn't about new releases. It's about control and about keeping the "status quoe". Otherwise, Hollywood would not allow new releases on the net (and they do) and 30 year old tv seies shows on dvd would not still be $25 a disk (and some are).

Alot of companies make recording devices and the internet is the ultimate communications tool. Alot of money is being made and spent on "convergeance" bringing the television, the radio, the internet, and the telephone together into ONE device. This cannot be done without some kind of content. Whatever that content may be.

These judges, the RIAA, and the MPAA must excersise extreme caution here. This has the power to lay ALL our most treasured technologies to complete waste.....WORLD WIDE. If America is to remain in the status as a "super power", it MUST maintain technological superiority. This fight has the ability to completely destroy the superiority.

As I see it....
This is about greed, power, and control. All by groups of people that refuse to "use" this technology (perhaps due to fear) for the benifit of all man kind.
Posted by Prndll (382 comments )
Reply Link Flag
p2p swapping
I can understand what is happening, but all I say, is that if this was not to come true, then why were recorder's made in the first place?
Also, the way things are now more people are hearing artist's they never heard before, which could help instead of hender the sell of music.
Posted by Earl (60 comments )
Reply Link Flag
Bongs??
Yes bongs are legal and thus so should the stuff you put in them be also. But seriously, this is such an old arguement. No I don't believe in piracy but yes I do believe in any form of communication between folks and thier machines. Did I build this machine just so I could play Solitare? Hell no! Do I want to rip-off the music industry? No! Do most others? I really don't think so. Go ahead RIAA, make your move. Us consumers who buy your products can make or break the industry. Check-Mate!
Posted by damoney777 (1 comment )
Reply Link Flag
DOES ANY OF THIS REALLY MATTER?
Does any of this really matter?

No matter what the courts say, the fact is that anything that can be done digitally can be undone. Hence, all efforts on the part of the RIAA, the MPAA, and any related organizations will all prove fruitless because the Pandora's box (the Internet) has been open far too long and there's no eradicating the technology that exists that allows people to download.

If there is ANY tech person out there that is reading this that can state that there will someday be a technology to prevent downloading, by all means please tell me. But every single tech person I've interviewed for the last five years has told me that no matter what will be created to stop these practices, all efforts will be temporal and undone by other tech people who know how to get around whatever "speedbumps" are placed out here in cyberspace.

Even if it were possible to shutdown every website around the world that offered film and music content, that would onlty create a host of Intranets and User groups that would continue to download anyway.

Whether it's Grokster, or any of the dozens (hundreds?) of other file-sharing websites out there that have music and film content on them, the issue should now be for the film and music industries to create new online revenue models ASAP because whether they like it or not the Internet is not going away, and neither is file-sharing/downloading. It's going to continue...and instead of wasting precious time on lawsuits and trying to find a "magic bullet" to solve the problem, the film and music industries need to realize they will have to co-exist in this new world.

If the industry thinks that thought unthinkable...then I suggest they look at iTunes and the revenue and sales Mr. Jobs and company expect to gross this year.

Online digital music sales are way up. According to the IFPI (International Federation of the Phonographic Industry), the number of legitimate online music sites rose to 230 last year, compared to 50 the year before. The catalog of music available online also doubled, to 1 million songs. The international trade organization also says that individuals in the U.S. and Europe legally downloaded over 200 million tracks last year, up from approximately 20 million in 2003. That amounts to online sales of about $330 million, or about six times 2003's take. (<a class="jive-link-external" href="http://www.ifpi.org/site-content/library/digital-music-report-2005.pdf" target="_newWindow">http://www.ifpi.org/site-content/library/digital-music-report-2005.pdf</a>)

It's time for the film industry to realize they can reap the same rewards if they stop wasting time. Who knows...maybe Steve Jobs already has iFilms in the works.

Steve Meyer
President - Smart Marketing
Publisher - DISC&#38;DAT - A New Media Newsletter
Las Vegas, NV 89141
E-mail: stephennmeyer@earthlink.net
Posted by stephenmeyer (33 comments )
Reply Link Flag
I completely agree, but......
We're talking about people that are not interested in "co-existing". These people want dominance. This whole thing is a struggle for power and control. They have plenty of money and plenty of clout and are using them both.
Posted by Prndll (382 comments )
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