Grokster reversed and remanded

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So maybe the optimism in my last two posts was slightly misplaced. Here's to eating my own words...

Today, the Supreme Court, in its *infinite wisdom*, handed down its decision reversing the 9th Circuit's dismissal of claims for contributory and vicarious infringement in MGM v. Grokster (and Streamcast - aka Morpheus).

Distinguishing the case from Universal v. Sony where the court recognized "the substantial non-infringing uses" of VCR's as a defense to liability, today's court held that, “where evidence goes beyond a product’s characteristics or the knowledge that it may be put to infringing uses, and shows statements or actions directed to promoting infringement, Sony’s staple-article rule will not preclude liability.”

This evidence centered on an advertisement and marketing scheme whereby both Grokster and Streamcast sought to capture Napster's former audience - by promising access to more copyrighted work than even through a new sort of decentralized/unmonitored network which would not be vunlnerable to liability under the Napster decision.

Grokster has been remanded to the lower court for a final decision, but the legs of the defense have been kicked right out. The court has stated 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.” The court concludes by ordering consideration of summary judgement for MGM. In my novice eyes, the situation does not look good for Grokster and Streamcast.

On the bright side, I suppose it's only a matter of time before some new corporation puts this standard to the test by promoting its filesharing software *as intended solely for the sharing of non-infringing files*, taking every step to warn against infringement, and no steps to actually prevent it - because monitoring would just be too expensive right? Grokster and Streamcast piggy-backed on Napster just like that and got away with it for a couple of good years before this decision, making tons of money through advertising revenue targeted at a user base of 100 million.

The question is not if, but when someone will take the small steps necessary to escape the reach of this decision and fill the market gap left by the collapse of Grokster and Morpheus. They just can't document the plan to be the next big thing like Grokster did. (locating the company in international waters or in a 3rd world nation which doesn't follow TRIPS might also be good thinking.)

Limewire seems to be hot stuff these days - I imagine we'll soon see if they've been careful enough to withstand the fallout of this decision.

Link to the Grokster Decision.


A cost benefit analysis on downloading

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Since 2003 when active downloaders were estimated at aproximately 18,000,000 people, the RMIA has managed to sue fewer than 12,000 people for copyright infringement.

Despite the legal hype, the downloading subculture has grown in the last two years, to an estimated 23,000,000 participants in 2005.

What are the current odds of being sued? P2P.net concludes that "when you get right down to it, individual file sharers stand about as much chance of being sued by the RIAA as they do of being struck by lightning, which ironically is a simile the RIAA has used to describe the effects of its onslaughts." (link to full story)

With the average settlement amount for the unlucky 12,000 totaling to only $3,200/head - the economics simply do not favor the RMIA, especially given that your high end copyright attorneys typically charge industry plaintiffs something on the order of $500/hr for their services. Not only is the industry losing money from downloading, it is losing money on its failing enforcement efforts. The settlements do not come close to matching the legal fees, and the few major judgements go unpaid by insolvent defendants.

Unless these suits eventually strike fear into the hearts of the general public, or become more palatable in an economic sense, they serve little purpose at all. With the number of downloaders still growing, it would seem that this generation will witness the triumph of civil diobediance through filesharing. Free copies for one and all.


Reflections on Intellectual Property

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Imagine for a moment the creation and mass distribution of a device that could perfectly replicate food, even the most elaborate meals, at no cost at all. You could insert any dish and rapidly produce perfect copies. It would be miraculous, wouldn't it? It would be the end of hunger across the globe. It would allow millions of people, people of every socio-economic station, to experience the joy of eating fine and varied food. What would we not give for such technology!

Now imagine the creation of a device that perfectly and rapidly replicates music, making it accessible to people everywhere at no cost. File sharing is miraculous isn't it... Yet this amazing technology is outlawed and our potentially free exchange of culture and music is branded copyright infringement. It makes me sad to see the monetary interests of the few, predominantly the middlemen in the recording industry, come before all the potential joy and cultural growth which might stem from free copying of digital media.

(further thoughts after review of my original 2am posting...)

Certainly we should find some way to compensate the artists for their work, but the current state of the law egrigiously overshoots the necessary scope of economic incentives to encourage creative efforts.

Long ago, the US rejected copyright protection in perpetuity, an enduring absolute right of control for the author stemming from natural rights philosophy and the position of several European nations. But the current 75 year monopoly is still clearly too long - especially when the underlying motivation for the the most recent extension of copyright protection was a Disney lobbying effort because Micky Mouse was about to fall into the public domain.

When the copyright clause was added to the constitution, it was casually referred to as "an act for the encouragement of learning." Today, however, the overly broad scope of intellectual property rights are interfering with learning, thus slowing both the rate of technological expansion and creative expression by providing unecessarily strong monopoly rights. Intellectual property today is defeating its own initial purpose.

These protections were premised on encouraging learning, but by forbidding derivative works, and ignoring the fact that human knowledge and culture must build upon their own shoulders in order to progress, we hinder learning instead.

Long before Justice Breyer became your and my "honor," he composed one of the first scholarly criticisms of broad copyright protection based on economic incentives. He pointed out that laborers in almost every other industry are allowed no expectation of enduring rights to control the products of their labor. A wage is sufficient economic incentive for the corporate inventor to invent. And a one time fee was historically sufficient to inspire and author to write and subsequently sell his or her work to the publisher (who was the original benefactor of IP protection.) It is time for us to realize that IP rights mark the delicate boudary between public benefit and private reward.

For far too long, this private reward has been far too great - and it has been at the expense of public access to art, literature, and music. Through the civil disobediance made so very easy by the internet, our culture must challenge this archaic system and assert the strength of our semiotic democracy. The time for *mostly* free information and reform is long overdue.


Back in Action

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Vegas was amazing - a marathon of good times with great people and a truly beautiful wedding as the finale.

The strip itself has come a long way from the gaudy, ugly, flashing lights I remembered from my adolescence. Highclass hotels, 5 star dining, and giant LCD's have replaced the Vegas of yesteryear. And while I tend to doubt that I would ever opt to get married in sin city, if I did, I would want it to be just like this wedding.

It was truly an elegant affair, and the feeling of love and joy in the room was tangible. Just seeing the confident and adoring look on the face of the groom as he watched his bride walk the aisle had me teary-eyed before the ceremony even began. This was no Elvis wedding. The Venetian is pure class, and that's to say nothing of the perfect piece of seared Ahi Tuna I consumed at the reception.

I had not realized how much it would mean to me to witness the union of my friend, neighbor, and mentor, my favorite baby-sitter/swim coach, the man who cultivated much of my lifelong interest in computers/gaming/and a few libertarian ideals as well - it meant more than I can aptly express. Congradulations again Kevin and Soula. Yours is clearly a bond of both love and friendship to be envied. My thanks to you and to Patrick and Cathy for sharing this event with me and my family!

The rest of the weekend was "a whirlwind" to borrow Patrick's phraseology. Aside from overextending myself on the night of the bachelor party and subsequently "liberating" myself off of the 6th floor balcony, the trip was intense fun. From seeing the Blue Man Group with my family to delectable tapas at the Firefly to a rowdy night of drinking, darts, and philosophy in an Irish Pub, we lived it up at the expense of doing a whole lot of sleeping. But I suppose that's what Vegas is for.

Since then, I have started my work for the general counsel at the Resources agency and helped Chante get settled down in LA for her fast times as a big firm summer associate. It's hard to find myself in a long distance situation again, but we'll have a lot of weekends together over the next 8 weeks, and her location couldn't be more ideal - in a lovely condo on the corner of Sunset and Fairfax - half a mile up from Canter's and the LA farmers' market. I assure you, my visits will not be hurting for good food =)

I'm going to cut myself off before I cause any eyes to bleed, but I hope to catch up with you LA folks the next time I'm down. The move-in weekend just flew by - sorry I missed you, and I hope all is well!


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