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[JimIvey]

From the News section of the main page of this site:

"Builders of Pirate Ships Not Liable for Piracy"  -  The USA today reports that a “three-judge panel of the U.S. Court of Appeals for the 9th Circuit in San Francisco rejected the piracy pleas of the record labels and movie studios. They had argued that unauthorized online trading of movies and music is costing a combined $7.5 billion yearly and that the owners of swap networks Grokster, Morpheus and Kazaa should have to pay.”

Editor’s note: I imagine this same three-judge panel would rule that cigarettes don’t cause cancer and drinking alcohol does not impair driving.

More can be read about the case here:
http://www.ipwatchdog.com/mgm_v_grokster.html

I think the Editor's note is a bit extreme.  As many of you probably know, the court ruled the opposite way for Napster.  The difference came down to the ability to do anything once the company is notified that its products are being used for specific acts of copyright infringement.  Why that was the issue had to do with the fact that there was no direct copyright infringement by Grokster and there are substantial non-infringing uses of the products, so you can't stomp out all activity just to stop some infringement -- that's like taking out a shop lifter with a cluster bomb, "over inclusive" to use the legal phrasing.

The difference between Napster and Grokster (and KaZaA and Gnutella) is that Napster has a central catalog of files that it controls and Napster therefore had meaningful control over what was available on Napster.  With power comes responsibility.

In Grokster et al., there is no centralized data base.  Peers are queried directly (or through supernodes, not controlled by Grokster et al.).  Sure, provide Grokster notice that a specific work is being passed around with authorization and what are they supposed to do about it?  As the court noted several times that, even if Grokster stopped distributing its software immediately, the large install base out there woud go right on sharing files.  

I'd be interested to hear anyone's thoughts on this case.

One technical note on the editor's note:  I don't believe anyone ever made a pirate ship.  I believe the pirates just steal legitimately owned and operated ships.  Perhaps it's a more apt analogy that I had realized.  Why punish the ship builders for mere knowledge that someone may eventually use the ship for improper purposes when there are substantial proper purposes for such ships?

Regards.

[Isaac]

I can see the editor's point although I don't agree with it.

If the argument hinged only on the ability to police
infringement, then I think it would be fair to point out that the use of
decentralized p2p model was chosen in part (if not completely)
with the intent of making the argument that they could not
police infringement.  But the case does not hinge on that alone.

Where I disagree with the editor is that I think a reasonable
argument was made that there was significant commercial non
infringement use being made of the p2p networks in question.
IMO that makes a strong case that the analogy with VCRs is an apt one.  The appropriate question IMO is not whether drinking alcohol impairs driving, but whether or not Miller, Budweiser, etc. should be held responsible for drunk driving accidents.

[eric stasik]

Mr. Ivey, Mr. Clark,

Thank you for your comments. My statement was certainly intended to provoke comment, but the analogy is not as tenous as it seems.

Mr. Ivey's comments about the architecture of P2P versus Napster are correct. In the case of Napster, a central database of files was maintained. It was the existence of copies of copyrighted material on the Napster owned hardware that caused Napster to be a copyright infringer.

Note however that the court actually concluded two things, the first being that sharing of copyrighted computer files is copyright infringement. Napster argued that it was fair use.  

So the court ruled that file sharing was illegal, and that Napster was directly liable for infringement due to its central database.

Now a bunch of geeks get together, read one half of the judge's ruling, and conclude that if there's no central database, then there's no infringement, and if there's no infringement, then the free music can continue.

So these codemonkeys hash out a distributed, virtual database on a peer-to-peer architecture. A nice, clever technical solution. Elegant. Grokster never handles the copyrighted files themselves, they just arrange dates between users who do. The copyrighted material remains with, and is distributed by, the user's host computer. No infringement according to the Napster ruling.

And there was much rejoicing. The free music could continue.

And so it did. P2P enabled the trade in illegally copied music files to continue unabated after the Napster ruling. Copyright owners have made awkward attempts to thwart this by flooding the network with corrupted and infected files. They have also tried to pursue legal action against individuals under the DMCA. Neither of these efforts has stemmed the tide of illegal file sharing.

The trade continues and Grokster, et al  provide significant links in the chain. That's what this ruling fails to recognize: the fact that illegal filesharing continues and is enabled (and encouraged) by Grokster, Streamcast, etc.

The ruling is based on a very narrow technical distinction and ignores the larger effect. It also ignores the history of why these networks came into being. P2P is not a ship designed for shipping, it is a ship designed, built, and operated with copyright infringement as its main purpose. Let's be honest about it. Yes, certainly the ship could and is being used to ship humanitarian aid, but when the overwhelming volume of shipping comprises illegal trade, one cannot look the other way as this court has done.

To the "other substantial non-infringing uses" I say show me that the economic and social benefits of these non-infringing uses are even of the same order of magnitude of the economic harm that unfettered use of P2P causes. The record industry claims a 7 billion dollar loss.... are the education benefits even one million dollars?

The court has said "Well golly gee it COULD be used to for something legal, so we have to ignore all the ill effects. Give the defendant back his guns."  

So to me this just doesn't seem like a balanced decision. Now I am not a lawyer and I accept that in some strange twisted way it may be legally correct, but I see no equity at all in the ruling for content owners.  

Eric Stasik

[JimIvey]

It was the existence of copies of copyrighted material on the Napster owned hardware that caused Napster to be a copyright infringer.

Just a minor technical note:  I don't believe Napster had copies of the copyrighted material, just catalogs of what's available where.  However, that was enough control for the court to impose responsibility for removing specifically identified copyrighted works from the catalog -- thereby making them unavailable as search results and effectively disabling swapping of those files.

The distinction is relevant (to me, at least) in that Napster itself was not guilty of direct infringement, but retained enough active participation to be aware of specific acts of infringement.

Note however that the court actually concluded two things, the first being that sharing of copyrighted computer files is copyright infringement. Napster argued that it was fair use.  

So the court ruled that file sharing was illegal, and that Napster was directly liable for infringement due to its central database.

Whoa!  That's a significant leap, logically.  Sharing of copyrighted computer files is infringement, therefore file sharing is illegal.  That presupposes that all files are copyrighted, which is clearly not the case.

The court identified several valuable and legitimate uses of Grokster et al. file sharing programs -- including one group that was refused a contract.  They recorded their own album and released it in P2P circles -- creating such a buzz that they eventually got a contract with a recording label.  

In fact, that example shows what this case is really about -- a meaningful threat to the RIAA oligopoly.  Why is it that a CD costs as much as a DVD of a recently released movie?  The materials are much cheaper, and so is the production of the substantive content.  Can an economist out there explain how the excessive profits of the RIAA are justified in a functioning free market?  I believe there is substantial manipulation of the marketplace by the oligopoly of the RIAA.

This isn't the first time the RIAA has battled new technology.  I remember the DAT wars of the 1980s and the RIAA's success in getting license fees for every blank DAT cassette sold.  Nevermind that DATs are overwhelming used for original recordings (radio, news, TV sound recording by professionals).  The RIAA has to get paid for any new technology which is capable of copying their works -- regardless of whether such copying actually takes place.  So far, their perennial attempts to get Congress to pass a law giving the RIAA veto power over any new technology capable of copying copyrighted works.  That includes this computer and my cell phone and my NAS.  Although the prospect of the RIAA doing battle against MSFT over the right to inspect MSFT's source code would be interesting to watch.

Then, don't forget how the RIAA (or its historical equivalent) whined and complained about radio and the phonograph.  Nevermind that each of those technical developments resulted in significant profit *increases* for the recording industry.  

[JimIvey]

I perceive the current spread of file swapping as a reaction to two developments, the first of which is alluded to above.  Why is a CD as expensive as a DVD?  There's no justification for it.

The second is the development of the mid/late 1990s -- the consolidation of radio station ownership.  There's only one station in my geographic area that plays music that appeals to me, and I can't receive its broadcast.  I used to listen to them on the web, but the RIAA put a stop to that!  The station I used to listen to got bought by some megacorp (an affiliate of CBS, I believe, but don't quote me on that).  Now, all I get on that station are poor immitations of Creed, which itself is a poor immitation of Pearl Jam.  Big yawn.

So, I periodically sample new bands listed on sites I trust for music judgment.  Don't ask how I get the songs to sample, but I have read that recent studies show that the vast majority of downloaded songs are for the purpose of sampling (as in trial listening, not mixing into another song) and people eventually buy the CDs.  Buying the CDs gives you the opportunity to rip the CD in a way that makes your preferred balance of quality and file space.

I've discovered a few new artists I really like this way.  The White Stripes, Maroon 5, Gorillaz, Basement Jaxx, Jack Johnson, Paul Oakenfold, and Slightly Stoopid, just to name a few.  I've also identified a few artists with a catchy hit whose other work I don't appreciate so much.  Without file sharing I would have never heard of these artists.

Oligopolistic control over the recording industry and radio stations has really tried to limit what people can hear.  They're like the VCs of the recording industry -- expecting huge returns for placing meager amounts of money on the "safe bets" and doing their best to raise "barriers to entry" for competitors.  I don't blame them; they're just doing what any reasonable, self-interested actor would do in a free market, but the market isn't free if they succeed.

So, have I bought CDs from those new artists?  No.  I'm in a bit of a moral dilemma.  If I pay the $12 for a CD, most of the money goes to support lawsuits against grandmothers and 13-year-olds.  If I just send it to the artists themselves and acquire and keep their songs by file sharing, I'd identify myself as a "thief" and would probably get a summons (good thing I'm not much into Metallica as they'd sue me themselves, although I went to highschool with James Hetfield).  

My last point.  If you've ever tried LimeWire (one of the gnutella clients -- one of the few that run in Linux), you can have it tell you what everybody is searching for (you see the search strings listed).  It appears that less than 1% of all queries are for copyrighted music owned by any member of the RIAA.  Yes, less than 1%!  Well, maybe more than 1% but certainly less than 5%.  It's hard to count as the search strings just fly by.

So, what is the other 99+%?  Well, it seems from my informal, unscientific study that as many people are interested in shareware/freeware (software) that's creating a buzz but not really hosted in a web site (KaZaA itself is distributed that way) -- at about the same rate as music to sample.  So that leaves only about 98%.  That portion is occupied by people interested in various parts of the human anatomy and their functions and excretions.  Are those copyrighted?  Probably.  Are they traded without proper authorization?  Hard to say.  I haven't sample all that much but I understand that the works are being searched for by descriptive terms of the content and not names of known copyrighted works.  It seems much more defensible.

The bottom line is that the situation is not nearly what the RIAA describes it to be: swapping of nearly only copyrighted works that the RIAA owns.  It's just not true.

Regards.

[Isaac]

I agree with Mr. Stasik's point about the equities although
I'm suspicious of the RIAA's numbers.  Still I suspect that
the infringing downloads probably are greater than than the
numbers on non infringing downloads.

In a fair use case, the court should legitimately weigh the
equities, but in this case where fair use is not the issue,
I don't think the court ought to be weighing the equities.
That smacks of deciding the result and then stretching the law
to fit.  Back in law school when I accused judges of doing that
the professors told me I was a cynic.
IMO the two types of indirect copyright liability provided under current just do not fit the facts of the case (at least no better than they did in Sony).  Congress is free to create a new type of liability.  Hopefully they won't outlaw VCRs in the process.

[eric stasik]

wow, thanks both of you for your insightful comments.

mr. ivey, as usual your response added some much needed clarification, and it also revealed what i think is the "other" story behind this.

i am not defending the RIAA's monopoly, what i am defending is a copyright owner's right to exclusivity in the distribution of copies of his, or her, own creation.

that this may be congruent with the RIAA's ambitions seems somewhat irrelevant. that bands choose to sign their rights away to the record companies is in my opinion a different matter altogether.

<i>Oligopolistic control over the recording industry and radio stations has really tried to limit what people can hear. </i>

absolutely. but you will not solve this by weakening copyright laws, or preventing their full extension to the environment of the internet.

from a copyright owner's perspective what grokster is doing is simply wrong: it is a system that helps people engage in illegal file sharing. yes, absolutely it has other uses and not all files that are shared are copyrighted, but it seems completely inequitable to give grokster a total pass on many billions of dollars of illegal file sharing that it enables just because the technology it employs might be of some benefit.

moreover, the arguments that P2P technology is a challenge to the record companies does not either hold much water. P2P may be a challenge to their distribution and sales, but it offers no serious challenge to their powers of promotion.

i would love to see bands able to sell their music directly to the public. so would every musician. but my brother - lead singer in "the buicks" -  tells me it's not about distribution, it's all about promotion. that's what the record companies deliver and that's what the distribution powers of the internet aren't likely to change.

i guess i'm not ready to accept lawrence lessig's argument that weaker copyright is a good thing in the digital age. i rather think it needs to be made stronger and that decisions like grokster are a step backwards.

anyway speaking of promotion, if you're in the philadelphia area and you like live blues (and who doesn't?) check out the buicks:

http://www.thebuicks.com

regards,

eric stasik

[JimIvey]

Thanks Messrs. Stasik and Clark for the thoughts.

I'm a little uncomfortable with the notion that, since most of the stuff traded in file sharing systems is copyrighted and unauthorized, we should ban all file sharing.  

First, why stop there?  We "know" that the primary use of Internet bandwidth is file sharing/downloading.  Let's ban the Internet entirely.  The same reasoning is applicable.

Second, that reasoning takes a snapshot at a particular time and locks the world into the equities of that time.  In Lessig's blog, Judge Possner has been filling in and pointed to his opinion in Aimster.  His reasoning came out opposite to Grokster, based on the same assumption:  we all know that the Internet is a haven for rogues and hoodlums who get their jollies flaunting copyright law and law and order generally.  But one observation was rather interesting:  the Sony Betamax case focused on the uses of the day: time shifting, library building, and time shifting with commercial removal (by judicious use of the FF key).  But the overwhelming majority of subsequent VCR usage was not even contemplated at the time and was entirely legitimate: playback of rented/purchased pre-recorded tapes -- a huge money maker for the unsuccessful plaintiffs.  So, why lock the world in to the equities of the current balance of usage of file sharing when those equities are fairly certain to change over time?

And, in the interest of full disclosure, I represented Liquid Audio during their attempts to get the recording industry to adapt and embrace new technology and new distribution methods.  As an alternative to massive reproductions of CDs (probably the most copy-prone media the world has ever known), LA offered a low-cost, secure, DRM solution for digitial delivery.  It was/is basicly a secure and defensible version of iTunes.  

Rather than give the people what they want (low cost, portable music), the recording industry decided to get out the big guns and go after grandmothers and teenagers.  Of all the paths available, the recording industry chose the most reprehensible.

The end result is that LA sold its patent portfolio to MSFT and I lost a great client.

I'm sorry to hear that the Buicks don't have a recording contract.  And, I understand about promotion.  But Creed wasn't promoted at first and they were selling out their live performances by word of mouth.  The recording industry was more or less forced to accept Creed after the popularity was established.  There are ways to promote yourself.  At least with file sharing, you have a chance to make it without a contract with a recording studio.  Without file sharing, the RIAA is a gateway for what we all can hear.  The RIAA is a de facto monopoly.  Presumably, the Buicks own their own copyrights and should be able to give the music away if they so choose, but nobody will hear it if the RIAA retains its monopoly and recording *and promotion*.

I'm not advocating complete disregard of the copyrights of music.  I just think the RIAA should take a lesson from the MPAA -- while worrying about stopping all copying of DVDs, they just price them more reasonably.  Rather than fiddling with DVD copy-protect-wordarounds, I just buy/rent DVDs -- it's easier and reasonably priced.  If music CDs reflected something less than a markup of a couple orders of magnitude, I'd probably buy a lot more of them.

Lastly, to test the theory that file sharing is used more or less solely for getting free copyrighted music, you can repeat my experiment.  Download and install LimeWire (or some other gnutella client) and just watch the search queries you receive.  You'll see that copyrighted music is the very tiny exception that swallows the rule (no pun intended -- you'll see what I mean when you watch the search queries).  Since when should 5% (less, actually) of the traffic control the medium?  It's patently absurd.

Regards.

[eric stasik]

I'm a little uncomfortable with the notion that, since most of the stuff traded in file sharing systems is copyrighted and unauthorized, we should ban all file sharing.  

First, why stop there?  We "know" that the primary use of Internet bandwidth is file sharing/downloading.  Let's ban the Internet entirely.  The same reasoning is applicable.

i am not saying ban file sharing, nor am i saying ban the internet. this is slashdot hyperbole.

what i am saying is that some control and responsibility must be attached to both of these. just like every other endeavour of civilised society.

Second, that reasoning takes a snapshot at a particular time and locks the world into the equities of that time.  In Lessig's blog, Judge Possner has been filling in and pointed to his opinion in Aimster.  His reasoning came out opposite to Grokster, based on the same assumption:  we all know that the Internet is a haven for rogues and hoodlums who get their jollies flaunting copyright law and law and order generally.  But one observation was rather interesting:  the Sony Betamax case focused on the uses of the day: time shifting, library building, and time shifting with commercial removal (by judicious use of the FF key).  But the overwhelming majority of subsequent VCR usage was not even contemplated at the time and was entirely legitimate: playback of rented/purchased pre-recorded tapes -- a huge money maker for the unsuccessful plaintiffs.  So, why lock the world in to the equities of the current balance of usage of file sharing when those equities are fairly certain to change over time?

mr. ivey this is exactly what i am saying. what changes over time is technology, what should remain relatively the same in principle is the law.

my argument is that copyright law should extend fully into the environment of the internet. there has to be a way to "lock" the equity provided by copyright into the changing dymanics of technology.

presently, technology has disrupted the law and the law needs adjusting to remain consistent.

I'm not advocating complete disregard of the copyrights of music.  I just think the RIAA should take a lesson from the MPAA -- while worrying about stopping all copying of DVDs, they just price them more reasonably.  Rather than fiddling with DVD copy-protect-wordarounds, I just buy/rent DVDs -- it's easier and reasonably priced.  If music CDs reflected something less than a markup of a couple orders of magnitude, I'd probably buy a lot more of them.

mr. ivey, you know fully well that there is no price lower than free.

it is fascinating that you believe that the RIAA is more committed to its business model than to its profits. in a free market, if there is a more profitable way of promoting and distributing music, this will eventually win - and it can only be sustainable if there is strong copyright protection behind it.

there is nothing preventing these new bands from signing up with these alternative providers and there is nothing from preventing these bands from offering their music with any license they so desire.

the existence of strong copyright does not cancel lesser forms. if the RIAA is such a dinosaur, then it will wither and become extinct in the face of this grass roots movement.

unfortunately, the music people really want is controlled by the RIAA and this is the core of your problem. how to get at those MP3s you really want under the terms that you think are reasonable.

so the RIAA monster has to be killed - not defeated.

my position is that undermining copyright law, hindering the creation of effective DRM within the architecture of the network, removing any responsibility for its use, and unbalancing the equity of free use to kill the monster (as posner, lessig, and others would have) will kill everyone else's business model too.

i totally reject the "future of ideas" philisophy and maintain that if the internet were more effective in protecting copyright, there would be a heck of a lot more copyrighted material available.

in my humble opinion.

regards,

eric stasik

[JimIvey]

i am not saying ban file sharing, nor am i saying ban the internet. this is slashdot hyperbole.

Well, it's not hyperbole, it's the natural extension of the RIAA's argument.  Their solution is clearly over-inclusive.

what i am saying is that some control and responsibility must be attached to both of these. just like every other endeavour of civilised society.

What you're suggesting is control and vicarious liability.  No one is disputing that sharing and copying copyrighted music files through Grokster et al. is direct copyright infringement.  

The real problem here, and the reason why we're all discussing vicarious liability rather than direct liabaility, is that these cases are really about exclusive control by the RIAA of the means of production of music.  

Of course, the current state of things is that most of the music shared is controlled by the RIAA -- that's merely the result of the legacy of monopolistic control by the RIAA.  If you allow *ster (Napster, Aimster, Grokster) to continue to exist and operate, you'd see in a year or two that a substantial minority of music swapped would not be controlled/owned by the RIAA.  Perhaps in as few as five years, you'd see a majority of music opted out of the RIAA.  

In the meantime, you'd see the RIAA take two defenses against this happening (and you're seeing both already).  First, fight -- by any means -- loss of exclusive control over the production of all music.  Second, if any artist becomes popular and significant outside the RIAA, bring them into the RIAA as soon as possible to maintain monopolistic control.

mr. ivey this is exactly what i am saying. what changes over time is technology, what should remain relatively the same in principle is the law.

my argument is that copyright law should extend fully into the environment of the internet. there has to be a way to "lock" the equity provided by copyright into the changing dymanics of technology.

Law has always had to adapt to new technology, and it won't stop doing it now.  However, extrapolating from that to suggest that copyright law requires a "lock" inside the technology makes all hardware/software vendors the police force for the benefit of the RIAA.  Why should all hardware/software manufactures be required by law to subsidize and indemnify the RIAA?  I see no reason for it.

How far are we going to allow private industry to be its own police force?  I have in-laws who bring their legitimately purchased music CDs (from overseas equivalents of Tower Records) through customs to either (i) have those CDs confiscated or (ii) be refused entry as a "pirate" -- on the "belief" that all such overseas copies are "unauthorized."  Man!  I wish I had that kind of power that taxpayer supported customs agents would look after my interests at the border!

Of course, this is all consistent with a trend of government to return from the modern notion of "trustee of the people" to the early 20th century model of "co-conspirator with industry."  But that's a huge topic.

presently, technology has disrupted the law and the law needs adjusting to remain consistent.

Does it?  IP historians comments that we're currently experiencing a high-water mark for enforceability of IP rights.  The opinion in Grokster followed the Supreme Court's guidance for vicarious liability quite well, I thought.  It's not clear to me how you would adapt that law to better balance the equities.

it is fascinating that you believe that the RIAA is more committed to its business model than to its profits. in a free market, if there is a more profitable way of promoting and distributing music, this will eventually win - and it can only be sustainable if there is strong copyright protection behind it.

You make a few assumptions here that I don't think are sustainable.  First, you assume that the market is free.  It's not.  In both Aimster and Grokster, the courts noted that the plaintiffs owned and controlled nearly all copyrighted music in the US.  The RIAA has engaged in much anticompetitive activity aside from these lawsuits, including retaliation to any retailer advertising music CDs below an established minimum price.  From what I understand the retailers are free to charge less, just not tell anybody that they do.

Again, this isn't about copyright -- everybody concedes direct infringement by many (most) of the Grokster users.  It's about vicarious liability and an extension of that law which would guarantee exclusive control of the means of production to the RIAA.  
...continued...

[JimIvey]

there is nothing preventing these new bands from signing up with these alternative providers and there is nothing from preventing these bands from offering their music with any license they so desire.

Even if that's true, it doesn't justify allowing the RIAA to dictate what forms of distribution are acceptible.  Doing so is an unjustified extension of current copyright law.

the existence of strong copyright does not cancel lesser forms. if the RIAA is such a dinosaur, then it will wither and become extinct in the face of this grass roots movement.

That's exactly what this is all about -- retaining exclusive control of the means of production of music.  However, I don't acknowledge greater and lesser forms of copyright.  As far as I know, there is only one kind.

unfortunately, the music people really want is controlled by the RIAA and this is the core of your problem. how to get at those MP3s you really want under the terms that you think are reasonable.

First, the law regarding vicarious liability strikes a fair balance and should be used (as it was in Grokster).  

Second, the RIAA has several options available under the current law.  One is to sue direct infringers.  They're doing that.  

Another is to offer their own music with DRM built in.  Liquid Audio had DRM which would allow a limited number of preview plays before a new license was required.  Why not have free downloads at Sony.com with such DRMs in place?  I play a song for 10 times, if I want to hear it more, I'll buy the license.  The DRMs of Liquid Audio also had player- and user-binding -- making sharing with more than a friend or two impractical.  This is all public information, by the way.  I don't believe I'm sharing any secrets here vis-a-vis LA.

But members of the RIAA don't want to do that.  They appear to insist on selling CDs for ridiculously high prices and to spend significant resources to stopping a move away from CDs.

my position is that undermining copyright law, hindering the creation of effective DRM within the architecture of the network, removing any responsibility for its use, and unbalancing the equity of free use to kill the monster (as posner, lessig, and others would have) will kill everyone else's business model too. (Napster, Aimster, Grokster, et al.)

Well, I don't think Posner and Lessig see eye to eye here.  Posner agrees more with you than does Lessig.  But I don't see Grokster as hindering any adoption of DRM.  In fact, if the case had gone the other way, there would be much less incentive for the RIAA to adapt to use DRM.

The only reservation I have in all this is the large existing install base of legacy CD players.  Even with DRM, it's a practical requirement that the end user be able to end up with an ordinary music CD that can be played in legacy equipment (e.g., the CD player in my car won't do MP3s or any DRM).  So, any DRM that supports writing to ordinary CDs is subject to all the copyability of ordinary music CDs.  That's the achilles heal of DRM currently.  I don't have the solution for that one.

Well, that brings us back to why I don't bother making copies of all the DVDs I rent.  There's just no reason to -- it costs be about a buck or two to rent them whenever I want -- or I can buy the few DVDs I want to watch repeatedly for a reasonable price.  

Okay, I really have to work today....

Regards.

[eric stasik]

Mr. Ivey,

Again, thank you for your thoughful comments. It seems to me that harbor a strong bias against the RIAA and are ready to throw out the baby with the bathwater. I just want to reply on a few points that really irked me - and then I'll leave this argument for another thread.

You wrote:

What you're suggesting is control and vicarious liability.  No one is disputing that sharing and copying copyrighted music files through Grokster et al. is direct copyright infringement.  
 
The real problem here, and the reason why we're all discussing vicarious liability rather than direct liabaility, is that these cases are really about exclusive control by the RIAA of the means of production of music.  

No. That's not what I'm talking about. I'm talking about the RIAA - and every other copyright owner - being able to exercise some reasonable control over the copyrights they own.

Presently, in the face of digital copying and distribution methods, there is effectively very little control that a copyright owner can exert.

The direct infringement is so diffuse, so massive, and in so many jurisdictions that it is practically impossible to achieve.

Fortunately, all of this direct infringement is networked together. And you can identify the connection points. Thus some form of vicarious responsibility becomes practically essential.

Sure you can sue individuals for direct infringement, but when the trade is such that 1 million different people are small infringers, it seems not unreasonable to try and stem the flow at a bottleneck or connection point.

Ergo the challenge against Grokster.

The basic problem I have is that even if you agree that file sharing of copyrighted material is direct infringement you don't seem to be willing to do anything about it.

You, and everyone else, know full well that Grokster, et al. enable and facilitate this illegal trade and you (and the california district court) are willing to just give them a pass.  

As I have said, I have a hard time seeing any equity, or sense, in this.

A bit later you wrote:

That's exactly what this is all about -- retaining exclusive control of the means of production of music.  However, I don't acknowledge greater and lesser forms of copyright.  As far as I know, there is only one kind.

Not lesser forms of copyright, but less restrictive forms of licensing.  Having strong copyright laws does not mean that some people cannot choose to license their material under any terms they want. A creative commons license is one example.

What I tire of is people telling me this is the wave of the future, that allowing greater "fair use" will create a renaissance of innovation, that the RIAA is a dinosaur and that the people demand something else.

Well, if this is true then put up or shut iup.

The RIAA and CC can - and presently do - co-exist and engage in head to head competition. If Lessig, et al. are right, then creative commons will become the de facto extent of copyright.

What I object to is the effort to forego competition and make CC the de jure extent of copyright.

I'm more than a little bit skeptical about the benefits of creative commons - in my opinion, it's based on a little too much socialistic idealism to be practical.

In my view, the Grokster decision eviserates enforcement of copyright and creates for all practical purposes a de jure CC license on the RIAA's content.

This is tantamount to taking the RIAA's property and transferring it to public ownership - which we now know from hard experience leads exactly where von Hayek said it would - to poverty and tyranny.

Frankly, the RIAA never should have left vinyl.

Thanks for a fascinating discussion. I'm out.

eric stasik











you are seem unwilling to make it possible fo

r copyright owners to reasonably protect their rights of ownership.

[JimIvey]

No. That's not what I'm talking about. I'm talking about the RIAA - and every other copyright owner - being able to exercise some reasonable control over the copyrights they own.

Presently, in the face of digital copying and distribution methods, there is effectively very little control that a copyright owner can exert.

The direct infringement is so diffuse, so massive, and in so many jurisdictions that it is practically impossible to achieve.

Fortunately, all of this direct infringement is networked together. And you can identify the connection points. Thus some form of vicarious responsibility becomes practically essential.

Sure you can sue individuals for direct infringement, but when the trade is such that 1 million different people are small infringers, it seems not unreasonable to try and stem the flow at a bottleneck or connection point.

Ergo the challenge against Grokster.

The basic problem I have is that even if you agree that file sharing of copyrighted material is direct infringement you don't seem to be willing to do anything about it.

You, and everyone else, know full well that Grokster, et al. enable and facilitate this illegal trade and you (and the california district court) are willing to just give them a pass.  

As I have said, I have a hard time seeing any equity, or sense, in this.

It's this simple.  How far away from direct infringement can copyright owners go to stop copying?  File sharing is just one avenue.  A very popular file swapping arena is usenet (aka newsgroups).  Lycos used to have a search engine just for MP3s via HTTP/FTP.  Then, there's e-mail.  All of the Internet is used to some significant degree to share copyrighted music.  All of the Internet, including *sters, is also used for perfectly legitimate purposes.  

Assuming I'm right (and I believe I am), that 5% or less of the traffic in *sters is for copyrighted music, explain to me how the equities favor shutting them down at the request of the RIAA.

Lastly, the assertion that I'm not willing to do anything for the RIAA is unfair.  I'm talking about one case: Grokster.  I think it was rightly decided.  I also agree that Napster was decided correctly.  I think the two cases strike a proper balance of vicarious liability equities.  How far are you willing to go?  Are you going to shut down all usenet feeds because there's a good chance that they contain copyrighted material?  Are you going to shut down all SMTP/POP/IMAP e-mail servers that don't check all attachments for copyrighted material?  Where does it stop?  Or does it?

The distinction in Napster/Grokster was along the lines of notice of specific copyright violations and the ability to do something meaningful about it.  I think that was a fair balance of equity.

Regards.

[Isaac]

Mr. Ivey, I agree with you that the issue is what is a
reasonable place to set the issue for vicarious liability.
I also see Grokster and Napster on opposite sides of what
I feel is a reasonable place to draw the line.

I think where the line is drawn is very important because the line
affects more than just whether or not P2P exists. It also
affects other technologies where the equities are less clear
cut than I see them here.  Take a look at some of the
technology sector arguments against the INDUCE act for an
idea of how innovators see things.

[eric stasik]

Mr. Clark,

I am envious that you are able to say in two short paragraphs what I have been trying to say in several lengthy posts.

Mr. Ivey,

You replied,

"Assuming I'm right (and I believe I am), that 5% or less of the traffic in *sters is for copyrighted music, explain to me how the equities favor shutting them down at the request of the RIAA."

Just yesterday NPR reported that the US Justice Department is going after illegal file sharers who use P2P. Operation "digital gridlock" they are calling it.

According to the Justice Department, the amount of P2P traffic in illegal software, games, music, and movies is upwards of 40 terabytes, or the equivalent of:

"4 times the print collection of the library of congress"

"60 000 movies"

"10,5 million songs"

If P2P networks felt some pressure to reduce this, it seems to us that appropriate technical means could be used to restrict this considerably while not undermining the usefulness of the networks for legal purposes.

Instead, the burden of enforcement is limited to direct infringement, meaning that copyright owners have to pursue thousands of individuals. If you are the RIAA you may have the financial means to do this, but it makes the cost of enforcement for new competitors to the RIAA prohibitive. And indivudual copyright owners can just forget about it.

A small box around direct infringement seems to me to only further entrench the RIAAs monopoly.

Moreoever, these court decisions have taken us in exactly the wrong direction. File sharing would perhaps be better accomplished using a Napster type architecture where "someone" is responsible for the integrity of the content.

And P2P - where this responsibility is diffused amongst thousands of individuals - should perhaps be the architecture which should have been banned.

Regards,

eric stasik