March 29, 2005 11:29 AM PST

Supreme Court may redefine file swapping

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widespread copyright infringement. They're asking the Supreme Court to rule that any company whose business is predominantly supported by piracy should be liable for that infringement.

The case has sparked strong emotions across the country, with technology companies and artists each contending that their livelihoods and freedom to innovate are at risk. Dueling protesters lined the sidewalks outside the court building before the hearing got under way. Supporters of file sharing wore black T-shirts and carried signs proclaiming "Save Betamax" and "RIAA keep your hands off my iPod."

A group of 18 singer-songwriters from Nashville, Tenn., carried guitars and signs reading "Feed a musician. Download legally."

"We're here to give a face to people being hurt by illegal downloads," said Erin Enderlin, one of the songwriters. "When we don't get paid, we can't pay our rent."

"The Supreme Court asked exactly the right question: How do we preserve innovation?"
--Fred von Lohmann, attorney, Electronic Frontier Foundation
The justices spent considerable time exploring whether the case could be sent back to the district court to decide whether the file-swapping companies had actively "induced" computer users to trade copyrighted files--a tack that could let the justices avoid making any major revisions to copyright law.

Grokster attorney Richard Taranto said the issue of past "inducement" had not yet been litigated at the lower court level, and so was not in front of the Supreme Court. Hollywood lawyer Donald Verrilli said the top court should not let the lower court rulings stand, because they would undermine any further review of whether the peer-to-peer companies were actively encouraging piracy.

As with any Supreme Court hearing, the questions cannot serve as a predictor of a final ruling. But backers of the peer-to-peer companies took heart in the justices' focus on the danger to other technology developers.

"The Supreme Court asked exactly the right question: How do we preserve innovation?" said Fred von Lohmann, an Electronic Frontier Foundation attorney who represents StreamCast Networks. "How do we protect the innovator in a garage who's inventing the next iPod?"

But entertainment executives said that the court seemed to be looking for a way to protect copyrights.

"There was clearly discomfort with the conduct of Grokster," said Mitch Bainwol, chief executive officer of the Recording Industry Association of America.

Indeed, many legal observers say the high court is likely to leave the law largely as is, and leave any substantial changes to Congress

"I think the court is going to affirm (the lower-court rulings)," said Ronald Katz, a copyright attorney with Manatt Phelps & Philips. "This doesn't fit in with the way copyright law is written. But it's not surprising that the law doesn't fit with something that didn't exist at the time the law was made."

CNET News.com's Declan McCullagh contributed to this report.

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49 comments

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P2P and Music
Being both a musician and programmer I can see both sides. However, P2P isn't really the problem. I really think the RIAA figures they can't keep suing individual people for ever so they want to take the easy way out and shut down any P2P that allows illegal downloads. You know what I can understand that too.

I don't know if the Recording and Movie companies ever tried to work with P2P companies or just demanded things from them, but P2P could try to work with them to find some way of stopping illegal downloads (assuming they haven't).

I have never downloaded a movie from the internet or anything like that. I haven't downloaded a song from the internet since iTunes came out and truth be told all the songs I did have been removed for one reason or another (hard drive crash mainly). I don't want to steal from them and I don't want them to steal from me. I like the idea of buying my music song by song. I like the idea of getting it right then. And I like the idea of have it available at the click of the mouse button.

The downside to P2P loosing this case is it will open a lot of other companies to lawsuits. I would be willing to bet that if this goes through a person could sue Microsoft or Red Hat for a bug that allowed a virus in. How about suing GIMP or Adobe because someone used their software for making counterfiet money.

Sure it might not happen, but it might.
Posted by System Tyrant (1453 comments )
Reply Link Flag
P2P here to stay, work with it
That's what really irritates me. That such influential people can't see the direction of where the technology i heading. I know it's easy to say then to do but, why can't they create self-contained files that have their own lock mechanism. With that approach, you don't have to worry about different platforms, or (DRM) mechanism or, services. This music file has self contained copyright mechanism that would have a common interface for verification to be allowed to execute or read. Hence no matter what p2p client you use or MS or Lnx or Mac, the protection is still there. Come on people use the power of STANDARDIZATION HERE.
For example, the thing ( snowcap ) that Napster guy is doing now is not the way to go.
Posted by Martin_Jozef (21 comments )
Link Flag
"...truth be told..."
Downloading a song IS NOT stealing.

The ability to download a song IS paid for.

The artists ARE getting credit.

The real problems here ARE the RIAA and MPAA wanting complete and total control as well as all the money.

You say your a musician, if you give them your signature....they own you (body and soul). Many artists have in the past writen songs to give you their testimony.

The problem IS NOT the downloader.

The problem IS greed and the nature of the power hungry.

The customer base of the RIAA/MPAA HAVE spoken. The message is quite clear as to what people want. The entertainment industry has a duty to their customers and their own bank accounts to use this technology rather than bring lawsuits against those that use it.

These big companies use our desire to download these things to get our business, then when we do....we are called thieves and are sued.
Posted by Prndll (382 comments )
Link Flag
My frustrations here....
It is frustrating to deal with people that refuse to listen to reason and look at the very real facts.

You say:
"However, downloading a copyrighted song that was not intended to be distributed for free is stealing."

How about telling that to the financial backers of the man that created MP3?

By the very nature of MP3, the intent is quite clear...distribution IS desired. I didn't create it, but I do understand it.

lol....you can't create something (especially something like this), put it on the global internet, and expect people not to use it. Have you given any thought as to "who" it is that puts a new movie online to be downloaded "before" it's official release date? I'm talking about the first person. Who is it that has access to it before it gets to the net?
Posted by Prndll (382 comments )
Link Flag
The end of email?
Last I checked, the overwhelming majority of email I receive is spam. So... By the logic of the Music and Movie industries, if spam were outlawed then email companies should be held libel for the activities of spammers! The end of email as we know it? Stay tuned!

~KPM
Posted by (1 comment )
Reply Link Flag
Another Solution?
Everyone seems to have an issue with downloading, but noone seems to mention anything about uploading? The files have to be supplied from somewhere.

I propose that everyone (as consumers) should have full and total unlimited download bandwidth, and limited upload bandwidth. If you want to exceed your upload limit, then you need to pay for it (and become a supplier).

The ones who are supplying the content (be it music, movies, warez, whatever) right now are every Tom, Dick and Harry who has a broadband connection via BitTorrent, Grokster, Kazaa, whatever. However, I believe that the amount of content supplied would be severely limited if the suppliers had to start paying for the uploads. Legitimate business models could be formed based on the amount of upload bandwidth a company is willing to pay for, and thereby passing the costs onto their customers with a reasonable profit margin on top of that.

My ISP in Canada limits my download limit to 60GB per month. I'm not sure what happens yet when I exceed that limit, but they supply an online tool that allows me to verify the amount of download and upload data I have transacted on a month to month basis. Needless to say my uploads are something like 20 or 30 times smaller than my downloads. Thus, I'm not a supplier, I'm a consumer.
Posted by TMB333 (115 comments )
Reply Link Flag
Most ISP's already do that
If you have ADSL (Asynchronus) you have an upload cap. Even if you don't, your upload capacity is generally less than 1/3 of your upload capacity. ISP's do this so that you can't run a huge webserver on their pipes and degrade their network performance. The problem with your suggestion is programs such as bit torrent where the downloaders are not downloading from 1 specific person, they are downloading peieces of the same file from thousands of people simultaniously. So do the math, the shear number of people on the internet even with an upload cap multiplied by the amount they are given by their ISP's and you wont even put a dent in it. Nice try though! more creative than the last guys!
Posted by (18 comments )
Link Flag
Another Bad Idea
I'm a musician, and I DON'T support the RIAA's position on this, and I don't support putting restrictions on uploads. What the RIAA and the labels DON'T like about P2P, is that it renders their services useless. Fact is, I don't need them anymore.

It's called evolution, and those who don't adapt will figuratively die, and those who do adapt will thrive. The RIAA and the major labels are not, as they are made out to be in the media, the protectors of musicians and artists. They are becoming an unnecessary middleman who have spent many decades gouging artists and consumers alike.

iTunes and indie distribution is the way of the future. P2P is a means of cheap marketing for artists. New business models will emerge, and hopefully make a more level playing field for artists and consumers.
Posted by (274 comments )
Link Flag
Another Bad Idea
I'm a musician, and I DON'T support the RIAA's position on this, and I don't support putting restrictions on uploads. What the RIAA and the labels DON'T like about P2P, is that it renders their services useless. Fact is, I don't need them anymore.

It's called evolution, and those who don't adapt will figuratively die, and those who do adapt will thrive. The RIAA and the major labels are not, as they are made out to be in the media, the protectors of musicians and artists. They are becoming an unnecessary middleman who have spent many decades gouging artists and consumers alike.

iTunes and indie distribution is the way of the future. P2P is a means of cheap marketing for artists. New business models will emerge, and hopefully make a more level playing field for artists and consumers.
Posted by (274 comments )
Reply Link Flag
Very good....
Very good post.
Posted by Prndll (382 comments )
Link Flag
Grokster is going to lose
My prediction is that the Surpreme Court will overturn at least part of the decision. It's highly unlikely that it would hand a clear victory to a company whose business model is copyright infringement. And it wouldn't have taken the case if it didn't think there were fundamental issues to be resolved.

The Court, I think, will declare that P2P networks and VCRs are too different for the Betamax precedent to apply to this case. VCRs are replication devices. Replication of copyrighted materials isn't necessarily infringement. P2P networks are distribution infrastructure and the unauthorized redistribution of copyrighted materials in full would almost certainly be a violation. The Betamax case also differs from the present case in that Universal was essentially asking for a prior restraint, something the Court has always been reluctant to grant. With Grokster, no one can deny that massive infringement is taking place.
Posted by Chung Leong (111 comments )
Reply Link Flag
re:Andrew Gilna
There are legitimate reasons for downloading asong you already own.

1. It is on a CD or LP and you don't have the hardware to make digital copies from them-fair use

2. In my case, I have about 200 CD's about 100 cassettes and a handful in storage in another state. I am not able to ship them to myself right now, but I downloaded a bunch of the songs. That is not stealing it is fair use.

3. Whatever media you bought them in was damaged and unlistenable. That is fair use as well.

It is sad how easily people are manipulated into believing self-serving corporate lies. There are too many gerbils in this country.
Posted by Bill Dautrive (1179 comments )
Reply Link Flag
Fair Use
1. It is on a CD or LP and you don't have the hardware to make digital copies from them-fair use

You have a CD and you have a computer but you can't make MP3s? Please explain?

2. In my case, I have about 200 CD's about 100 cassettes and a handful in storage in another state. I am not able to ship them to myself right now, but I downloaded a bunch of the songs. That is not stealing it is fair use.

Fair reason but that is a rare case (I have 200+ CDs and I used to be in the Navy but I had no trouble keeping them at hand)

3. Whatever media you bought them in was damaged and unlistenable. That is fair use as well.

I think that isn't Fair Use, it is just tough luck. Things wear out and you should of exercised your fair use earlier and made a backup. Try that when you buy a car and see if they care!
Posted by Andrew J Glina (1673 comments )
Link Flag
One more thing
I download some songs on the internet, but I pay for them. I get them from a site that has bought the songs legally as well and made agreements with the people who hold the copyright to sell their music in mp3 format. This isn't illegal is it?
Posted by (12 comments )
Reply Link Flag
Not in that case.
As long as permission is given by the copyright holder, you're fine. It's that simple.
Posted by (282 comments )
Link Flag
 

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