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More thoughts on the MGM v. Grokster decision

After a scan of the Supreme Court decision [PDF] in the case of MGM v. Grokster, I realized my initial take on the ruling was probably over the top. That said, the ruling probably will embolden the RIAA (joined soon by the MPAA) to sue early and often. Here's the money quote from the decision:

The question is under what circumstances the distributor of a product capable of both lawful and unlawful use is liable for acts of copyright infringement by third parties using the product. We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.
That standard, if pursued by litigants, would seem to be something that would worry me if I were the manufacturer of CD burning software, CD-R drives, portable MP3 players, Apple's iPods, etc.

Recordable CD drives (CD-R/CD-RW) have been the bane of the software industry for years due to piracy concerns, and recordable DVD drives are now much more common. Using the logic of MGM v. Grokster, software makers could sue the makers of CD burring software, or the recordable drive manufacturers themselves, for damages caused to them by users of the software or devices. Ironically Sony is on both sides of that fence, as they make Recordable CD and DVD drives and they own a a Hollywood studio.

Is it likely?

Hard to say, but remember that no one believed the RIAA would hunt down and blanket the nation in lawsuits against individual users of P2P.

Update: Jeff Harrell, who disagrees with me, says the decision is no big deal and has a FAQ about the decision. Given that the RIAA (and others) are involved I'd say he's being overly optimistic that they won't try to press the one game winning streak.

Update 2: I stayed away from the obvious iPod reference, mostly because my memory of their ad campaigns was too fuzzy. Rebecca Tushnet at SCOTUSblog wonders whether the Apple Rip. Mix. Burn. ads and early Sony Betamax ads would have opened the companies up to contributory infringement claims decided in this case in favor of MGM.


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Comments (12)

I think the Sony case from ... (Below threshold)

I think the Sony case from the 70s refutes your fear. Private recording, for private use, will remain legal.

RIAA will go after you if you burn CDs and distribute them at large. And clearly the law will support them when they go after people who make MP3s of copyrighted songs freely available.

Grokster, KAZAA, and other P2P software manufacturers/vendors are going to have to be explicit in their declarations that their products are not to be used to violate copyrights--far beyond a *wink-wink*. Maybe they could do some policing of their own to show that they mean business?

<a href="http://www.theshap... (Below threshold)



Read and chill out. The court slammed Grokster and Streamcast because they actively designed and marketed their services for piracy, not just because of the potential for piracy.

It would also concern me if... (Below threshold)

It would also concern me if I were a manufacturer or seller of alcohol, or maybe an automobile associated with a drunk driving case. Or a cell phone manufacturer or seller, in relation to a car crash related to cell phone use, or a phone which was used to detonate a terrorist’s bomb. Or a manufacturer or seller of a gun used in a crime. Or of a camera or film or computer used in a child pornography case. Or a cable TV network, cable distribution system, or a TV camera manufacturer who happened to be an “enabler” of a libel offense. Or maybe even a newspaper publisher, writer, printer, news print or printing press manufacturer, or even a lowly carrier, who might similarly be “involved” in a crime.

I think CD-burners are goin... (Below threshold)

I think CD-burners are going to do just fine; among other things, law firms sometimes burn information onto CDs for storage ...


"Overly optimistic" describ... (Below threshold)

"Overly optimistic" describes the hope that the Kansas City Royals can still win the Pennant. Assuming that the RIAA isn't going to hunt down every P2P software provider they can get a street address for is something else. That's what they do. (That whole thing about carefully nurturing talented new artists just wasn't working out.)

P2P software development will take a hit as well as capital flees to investments that don't have lawyers Googling them all day long. Have you heard about the latest venture capital investment in asbestos? No?

This does not mean that the makers of soda straws are going to get sued every time a teacher takes a spit ball to the back of the head, but the impact will be real and will be noticeable.

Everything they do to try t... (Below threshold)

Everything they do to try to keep piracy from happening is bypassed before it's put into effect. It may eventually devolve into groups forming to share files through email or just using offshore servers but they are pissing in the wind if they think they're ever going to stop it. I know at least 20 people in Texas that have been sued over filesharing and not a single one even bothered showing up in court. In Texas the very best you hope to gain in a suit against an individual is a judgement, the court says you owe it but it doesn't say you have to pay it. It may effect your credit rating but who is stealing music when they have good credit? As far as I can tell the only people coming out ahead on this are the lawyers, but they always come out ahead, don't they?

I hate to be argue-boy toda... (Below threshold)

I hate to be argue-boy today, Kevin, but Apple's "Rip, mix, burn" campaign most certainly would not have opened them up to any kind of liability. Those three activities — turning CDs into computer files, playing those computer files back, creating CDs from those computer files for personal use — are not merely lawful, they're expressly lawful, covered by the section of Title 17 that was added by the Audio Home Recording Act.

The Grokster and Streamcast campaigns were basically, "Find any song and download it." Youuuuuuge difference.

The problem is: The cat is ... (Below threshold)

The problem is: The cat is out of the bag on P2P for file sharing.

I feel this is merely damage control for these companies. I'm honestly surprised that it took so long for this law to come down from the High Courts.

Honestly though, do these mega-ultra-ginormous record/movie companies, honestly think that this is going to put the cat back in the bag and put money back in their purses?

File sharing programs, P2P programs, and BitTorrent programs, all these are everyday things you can find on 98.76547% of any college, nay, any current high school students hard drive.

The simple undeniable fact is that Digital Media has changed the face of the Music/Movie industry. The basic economic foundations that these industries are based upon are out-dated. The Pre-Broadband Internet economic premise that made these mega-multi-billion dollar companies is no longer a viable economic solution. I feel this is a grasp at returning things to the way they were before someone let the cat out.

You look at the program MusicMatch! Jukebox, this, I feel is the new economic template of how Digitial Media will be distributed. I am in favor of Digital Media Rights. I've bought several songs from JukeBox, I can only activate it on 3 computers, which is fine, I can only burn the songs 5 times, which I am fine with. I can upload it to my MP3 player as many times as I want. Thats what I wanted in the first place.

The next step is to do the same with movies. Damnit, I want to purchase Star Wars Episode III online and download it to my computer! What is the harm in selling full length features online for a purchase price of a movie admission. Five dollars fifty cents. I'd buy it just to have it to watch(the whole point of buying it right?). I'm only using this movie as an example mind you, it could be any TV show, Movie, or whatever. But this is the next generation of the Digital Media economic template.

Here is another peeve of mine; How on Gods green earth did companies like ILM not see how the technology that helped them create these super special CGI affects, not also create the very same technology that the RIAA and MPAA are now fighting? I don't have an answer to that, but you can be certain I'd like to know.

As I said in the beginning, I'm truly surprised that this has not happened much, much sooner. Easy acccess to Digital Media in a new economic template, could have easily been accomplished had these same companies opened their eyes back in the days of the starting of Napster. Had they caught a clue, and initiated something along the lines of what MusicMatch! does now with MP3's. It would never have come to this. Oh for sure there would still be piracy, there will always be piracy. Had they done their research and changed their economic template, not only would they have cut the head of the, proverbial, serpent off before it got big enough to turn around and eat them, they would have also opened a new, brand spank'n new no less, market in which they would, in my opinion, have made much more money than sticking with the old method. But you know dollar signs can blind people....

Why change everything when what we have is making us mega-multi-millions of bucks?

Because if we don't embrace this new market someone else will, and they'll do things that we won't like that will hinder OUR pocket-books and wallets.

Guess that means we'll just have to sue them!

Rant Complete.


Harrell's got it right. Th... (Below threshold)

Harrell's got it right. There's a big difference between CD burning software that is designed to move files from one medium to another and P2P software that was designed expressly to allow people to perform the sort of illegal file sharing that landed Napster in hot water without the central directory feature. Grokster, et al, hoped this "Sgt. Schultz" legal defense would work.

No one, with a straight face, can deny that Grokster, Kazaa, etc. were designed with the overiding intent of swapping copyrighted material. This doesn't mean that non-copyrighted materials couldn't be shared too... but come'on! Yeah, and a bong can also be used to smoke tobacco.

The "Sgt. Schultz" legal de... (Below threshold)

The "Sgt. Schultz" legal defense! Great! I love that metaphor. I'm totally stealing it.

Darby is both right and wrong. He's right that digital distribution is a wide-open market. (He's totally wrong that "Music Match" is something to emulate, of course; iTunes is the gold standard by which digital content distribution systems are compared.)

But this talk about "the cat's out of the bag" is just backwards. Folks, we're looking at an epidemic of theft on a massive scale, here. To just accept it is an abdication of all our values about property rights, the sovereignty of the individual and respect for the law.

Like so many other social problems, the solution to this one is education. Kids steal things because they were never taught not to.

Geez. I can feel one of my bi-monthly rages about public education coming on. Last time, fed up with the bickering over the teaching of origin theories, I called for the nationalization of control over public-school curricula. God knows where I might end up this time.

To amplify what Jeff said, ... (Below threshold)
Steve L.:

To amplify what Jeff said, a while back, I was reading an article in a technology-industry publication about the whole file-sharing-theft issue. The gist of the article was exactly as Jeff said. Kids believe that any given act is OK as long as you don't get caught. In fact, as a sidebar to the article, there was a piece about Intel. Every summer, they hire kids as interns. They surveyed them about their attitudes on ethics and found that the general ethics of the kids were "don't get caught." Kids felt that downloading music was OK using the rationale that, if it can be done, it must be fine. Intel noticed an interesting phenomenon. As these interns developed ideas of their own, they were quick to want to patent them to protect their intellectual property. In addition, their attitudes about downloading music changed.

I do disagree that public schools are to blame. Too often in out society, kids are not held accountable for their actions. Sure, sometimes it is the schools but that is typically a reaction to other forces. Parents have forgotten how to be parents. Instead of examining all the facts and then determining the appropriate action to take with their kids, they immediately attack the schools and tell the kids that they are blameless. Can you then blame schools for not wanting to take action? Why would you want to do something that you know full well will blow up in your face?

I was talking to a friend who owns a company that installs video surveillance systems. He works with lots of schools in his job. He told me of the perfect example of a parent protecting a child without all the facts. In this school, there were cameras throughout the building. Additionally, there was a camera with audio in the principal's office (a safety tool.) This camera caught the exchange.

It seems that a girl was caught doing something wrong. The girl's mother came to the principal's office and began to chew him up one side and down the other. Her daughter couldn't have done what she was accused of because she said that she didn't do it. The principal was out to get her, etc., etc. The mother was quite angry. The principal informed the mother that the incident had been caught on tape and proceeded to show her. The mother then immediately looked at her daughter and said, "You B****!" What would have happened if the school hadn't had cameras? The girl would have done something wrong and the mother would have defended her causing her to not be held accountable. Schools aren't perfect, but they aren't the only ones to blame here.

For those optimististic and... (Below threshold)

For those optimististic and naive few that believe that this Supreme Court decision won't result in blowback from the RIAA, remember that the DMCA allows for both criminal and civil penalties against anyone who even makes a copy of a CD, arguably even for personal use, regardless of whether there is any profit motive or not. Contrary to the RIAA party-line, music existed before the record labels and multi-national entertainment companies and I suspect that it will exist long after they're gone.






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