Interesting legal case

[Chrism]

http://www.businessweek.com/technolo...ies/998363.htm

Judge: File-swapping tools are legal

A federal judge in Los Angeles has handed a stunning court victory to file-swapping services Streamcast Networks and Grokster, dismissing much of the record industry and movie studios' lawsuit against the two companies. In an almost complete reversal of previous victories for the record labels and movie studios, federal court Judge Stephen Wilson ruled that Streamcast--parent of the Morpheus software--and Grokster were not liable for copyright infringements that took place using their software. The ruling does not directly affect Kazaa, software distributed by Sharman Networks, which has also been targeted by the entertainment industry.

"Defendants distribute and support software, the users of which can and do choose to employ it for both lawful and unlawful ends," Wilson wrote in his opinion, released Friday. "Grokster and StreamCast are not significantly different from companies that sell home video recorders or copy machines, both of which can be and are used to infringe copyrights."

While the ruling in no way validates the legality of downloading copyrighted music online, it would shield companies providing decentralized file-swapping software such as Gnutella from liability for the actions of people using their products.

As such, it could provide new leverage for file-swapping companies such as Grokster, Streamcast and Sharman in negotiations with record companies and other copyright holders to license works legitimately. Since Napster's $1 billion settlement offer with the record industry in 2001, file-swapping companies have repeatedly sought an amicable settlement with copyright holders but have been almost universally rebuffed.

The court's ruling applies only to existing versions of the Morpheus and Grokster software. Earlier versions of the software, which functioned slightly differently, could potentially leave the companies open to liability.

A spokeswoman for the Motion Picture Association ofAmerica (MPAA) said the copyright holders were deeply disappointed in the decision and would certainly appeal.

"We feel strongly that those who encourage, facilitate and profit from piracy should be held accountable for actions," MPAA spokeswoman Marta Grutka said. "We're hoping that people aren't taking this as an invitation to continue along the path of what is clearly illegal activity."

"We are reviewing the decision, and we intend toappeal," said a representative for the Recording Industry Association of America (RIAA).

Wilson's decision is the most closely watched Net copyright case since Napster. The RIAA and the MPAA sued Streamcast, Grokster and the original parent company of the Kazaa software in October 2001, and the casehas been making its way slowly through court since that time.

In late 2002, both sides asked the judge for summary judgment, or a quick ruling in their favor before going to a full trial. Wilson's decision in favor of the file-swapping companies Friday was tied to that months-old series of requests.

Nevertheless, the judge's surprise ruling marked the first validation of an argument that file-swapping supporters have been making since Napster's first controversial arrival. Peer-to-peer file-trading is a technology that can be used for activities well beyond copyright infringement, and the technology should not be blocked altogether to stop solely its illegal uses, these backers have said.

In making that argument, the judge looked back to the landmark 1984 Supreme Court ruling that upheld the legality of Sony's Betamax videocassette recorder. That decision helped establish the doctrine of "substantial noninfringing use," which protects technology providers that distribute products--like the VCR or photocopier--that can be used for both legal and illegal purposes.

"We are absolutely very proud of this judge for having the unusual capacity to be able to grasp the technology and its future benefit to taxpayers and shareholders around the world," said Wayne Rosso, president of Grokster. "Technology is usually way ahead of courts and legislature. The fact that judge was able to acutely comprehend (this technology) is a credit to the legal system."

Not like Napster
Much of Wilson's ruling hung on the technological differences between Napster and the newer, decentralized file-swapping services.

Napster's service opened itself to liability for its users' actions by actively playing a role in connecting people who were downloading and uploading songs--a little like a physical swap meet provides the facilities for people exchanging illegal material, the judge said. By contrast, Grokster and Streamcast distributed software to people and had no control over what their users did afterwards, Wilson said.

When users search for and initiate transfers of files using the Grokster client, they do so without any information being transmitted to or through any computers owned or controlled by Grokster," Wilson wrote. "Neither Grokster nor StreamCast provides the site and facilities" for direct infringement. "If either defendant closed their doors and deactivated all computers within their control, users of their products could continue sharing files with little or no interruption."

It didn't matter that the companies were aware generally of copyright infringement happening using their software, Wilson added--they would have to know of specific instances of infringement and be able to do something about it, to be liable for those users' actions.

That stands in stark contrast to an earlier ruling against file-swapping company Aimster, in which the judge explicitly said the file-trading company did not need to know about individual acts of copyright infringement as they were happening to be held liable for the illegal activity.

Friday's decision is likely to send shock waves throughout the copyright and technology communities, which have adjusted slowly over the last year to the notion that file-trading services such as these were mostly likely illegal. Technology companies have complained that the repeated lawsuits have stifled innovation, but many also have begun to move forward in alliances with authorized music--and film-distribution services.

The case will certainly be appealed. Because different courts have come to very different conclusions about the law, the issue could go as high as the U.S. Supreme Court, a process that would likely take years.

"This is far from over," said Fred von Lohmann, anElectronic Frontier Foundation attorney who has represented Streamcast in the case. "This is not the end, but it sends a very strong message to the technology community that the court understands the risk to innovation."

In the interim, the ruling is likely to produce another round of interest in legislation affecting copyright issue on the Net--an outcome that Wilson himself foresaw.

Policy, "as well as history, supports our consistent deference to Congress when major technological innovations alter the market for copyrighted materials," Wilson wrote. "Congress has the constitutional authority and the institutional ability to accommodate fully the raised permutations of competing interests that are inevitably implicated by such new technology...Additional legislative guidance may be well-counseled."

[Dante Hicks]

A post by numbers.

1. I'm not sure what I think about judges basically deciding public policy, irrespective of how enlightened their findings.

2. The EFF are

3. Intellectual property sux.

4. The judges ruling is fairly limited, he specifically goes out of his way to say this applies to only these defendents, not to Kazaa or P2P more generally. However, Pages 7-10 of the ruling (from the PDF file on Slashdot) make some interesting remarks on contributory infringement. If anyone cares.

[Judge]

Originally posted by Dante Hicks
If anyone cares.

not

[JonnyBGood]

Originally posted by Dante Hicks
3. Intellectual property sux.

I'd hate you if you weren't such a lovable, warm and cuddly communist!

[queball]

Originally posted by Dante Hicks

2. The EFF are

They aren't anti-IP though. I guess no-one's perfect.

[Sub]

[Leshy]

Ace.

[Black Dog]

Originally posted by Dante Hicks
3. Intellectual property sux.

I've just written a fantastic essay on this very subject.

But I'm more of a traditionalist. So I sat on the fence.

[Jammers]

The way I see it is this: It's legal to record TV shows\movies off TV, and its legal to record songs off the radio, and if I assume that the stuff I'm downloading was recorded off TV\Radio then theres no harm done, since it was all acquired legally.
If these people wanted to make money, they shouldn't put their songs on the radio where they can easily escape into the public domain(sortof)

[Snurx]

Hey this was nice!

[Leshy]

Originally posted by Jammers
If these people wanted to make money, they shouldn't put their songs on the radio where they can easily escape into the public domain(sortof)

What's the difference between me recording a song off of the radio, giving it to someone else and the both of us recording the song off of the radio anyway?

[Jammers]

Originally posted by Leshy
What's the difference between me recording a song off of the radio, giving it to someone else and the both of us recording the song off of the radio anyway?

The first way is easier as the other person doesn't need to sit in front of a radio all day until the song comes on.

[roadrunner_0]

and here was me thinking it was technically illegal to record from the radio or TV (as in, it actually is) :/

[NEWSBOT3]

downloading music is still illegal, the judge just ruled that the network creators cannot possibly police their own system.


shrug.

[Jammers]

Originally posted by roadrunner_0
and here was me thinking it was technically illegal to record from the radio or TV (as in, it actually is) :/

*hides his videos*

[queball]

Originally posted by roadrunner_0
and here was me thinking it was technically illegal to record from the radio or TV (as in, it actually is) :/

no it isn't.

[Embroglio]

So.....

Recording off telly: illegal
Recording off radio: illegal
Recording a cd you bought to tape: ?
Copying a tape you bought: ?
Recprding from DVD to video: illegal (I presume)

[Dante Hicks]

Originally posted by Jammers
*hides his videos*

My understanding is that recording something off the TV to watch within the next 24 hours ("timeshifting") is legal. Recording something to keep ("archiving") is not legal and violates copyright. Same with radio.

With digital medium the distinction doesn't exist (Afaik) but you could probably get away with MP3s on your computer if you could show that you had no intention of archiving them (e.g. a cron job running to delete every MP3 on your computer every 24hrs).

Of course, fair-use has been pretty hit in the US by the DMCA, so I'm not sure what the situation is there at the moment.

[roadrunner_0]

Originally posted by Embroglio
So.....

Recording off telly: illegal
Recording off radio: illegal
Recording a cd you bought to tape: ?
Copying a tape you bought: ?
Recprding from DVD to video: illegal (I presume)

recording off telly: legalish, as long as you arent planning on keeping the recording for very long (see Dante's post above)
recording off radio: probably the same, but i have never heard anything about that one
Recording a CD you bought to tape: PERFECTLY LEGAL you are allowed a backup as you have bought the copyright when you bought the cd
same for the copying a tape you bought
recording from DVD to video: possiblt the same as for the cd one, as long as you own the original as well, you are probably ok

[Dante Hicks]

Originally posted by roadrunner_0
Recording a CD you bought to tape: PERFECTLY LEGAL you are allowed a backup as you have bought the copyright when you bought the cd

Yup, again "fair use" as far I am aware.

I remember reading an article which said that when computer programs came about some people wanted a blanket ban on any copying of any "copyrighted" file. e.g. a program. This failed however when someone pointed out that as soon as you ran anything, it would damn well copy it to memory. Almost certainly apocryphal, but amsuing nonetheless.

[roadrunner_0]

Originally posted by queball
no it isn't.

yes, it is

[queball]

Originally posted by roadrunner_0
yes, it is

Originally posted by roadrunner_0
recording off telly: legalish, as long as you arent planning on keeping the recording for very long (see Dante's post above)
recording off radio: probably the same, but i have never heard anything about that one

???????????????????

[wu_trax]

Originally posted by roadrunner_0
and here was me thinking it was technically illegal to record from the radio or TV (as in, it actually is) :/

no, it isnt. it is illegal to sell the copies and make money with them though. (at least thats what is the situation here)

[Jammers]

Originally posted by wu_trax
no, it isnt. it is illegal to sell the copies and make money with them though. (at least thats what is the situation here)

What if you just give them away for free? (Which is essentially what happens on FileSwapping things)

[djbass]

It is illegal to make copies from TV and Radio, but the infringment is seldom enforced. The station pays performance royalties (as do nightclubs) that allow them to play the material on public domain, but it does not cover reproduction of the material.

=[DJ Bass]=

[Dante Hicks]

Originally posted by wu_trax
no, it isnt. it is illegal to sell the copies and make money with them though. (at least thats what is the situation here)

That's not the situation in the UK (might be different there though). It's a common misconception that making money makes copyright infringement illegal - it doesn't.

It does however dramatically increase the chance the police will take an interest in your activities. You can have a few dozen gig of MP3s and no-one will care. If you set up a stall outside your house selling burnt CD-Rs of said MP3s then you will almost certainly be arrested (or more realistically, cautioned and told to stop).

I've used Warez BBS' and private FTP sites for a good ten years or so now, and I've never encountered anyone (directly) who was raided. But at one point (before broadband or flat-rate dialup) I used to purchase warez CDs from a group in Glasgow. They were raided monthly by trading standards and the police.

[roadrunner_0]

Originally posted by queball
???????????????????

as others have said, it IS technically illegal, but it vary rarely gets enforced :/
sorry for nto making myself clear