A Copyfighter’s Musings

Mary Hodder posts Mark Pesce’s email discussing fall-out from Suprnova’s demise and the comparison with Napster.

Filed by Derek Slater at 9:21 pm under General news
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Creative Commons produced and recently released this short film about the launch of the sampling license in Brazil. 

Filed by Derek Slater at 9:06 pm under General news
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I’ve been thinking about this over the last few days and noticed Zeropaid’s Chris Hedgecock make the same point in this News.com article: Suprnova et al shutting down seems like such a clear parallel with Napster shutting down.  It’ll be important for the movie industry for about five minutes.  eDonkey has a similar system for swarm downloading.  The decentralized Exeem is already in development.  These suits are an interesting and important development, but they’re hardly more than a temporary stopgap.

Filed by Derek Slater at 7:54 pm under General news
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What a friggin shock - not.

Filed by Derek Slater at 2:06 pm under General news
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Along with their lawsuits against individual infringers, it seems the MPAA is now going to go after BitTorrent trackers and eDonkey server providers.  According to this report (via Copyfight), they play the same role as Napster’s indexing servers.  Professor Felten predicted this months ago.

Filed by Derek Slater at 10:39 pm under Big Ideas
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(Cue more thinking out loud, building on a few conversations I’ve had with others Oral arguments in Grokster will be in March (btw, someone let me know when the actual date is announced - gotta make travel arrangements)  I can’t imagine a decision coming down before the end of the term ~ mid-June.  What do we have to look forward to come summer, after the decision is handed down?

Either way, things will get messy.  Generally speaking, if Grokster wins, we should expect the return of INDUCE, right?  Once and for all, the ball will be in Congress’ court. If Grokster loses: send in the lawyers.  Grokster, check, Morpheus, check.  Finish off KaZaA, then hit eDonkey.  Maybe start hitting up the smaller distributors and networks - your Bearshares and Soulseeks of the P2P universe.  For BitTorrent - who are they going to sue? Bram Cohen?  That should be interesting.  Many months later, expect a Lexmark or Skylink like lawsuit coming from out of nowhere.  Didn’t take long to start seeing unintended consequences of DMCA; don’t expect it to be much different here.

Of course, this description is a bit too black and white.  Whether these parties win or lose at the SC, the specific test applied will be important. A ruling covering certain P2P systems will extend beyond systems like Morpheus and KaZaA alone, but the question is how broadly and how easily will one be able to map the ruling onto similar/analogous contexts.  One can imagine a ruling that nails Grokster and Morpheus, but somehow doesn’t end up covering some other P2P systems.  (In which case, again, we quite obviously only get more chilling effects without doing a damn thing about stopping P2P.)  Indeed, one can imagine a test harsher than Sony but one or both systems manage to pass given the facts.  Maybe they limit it to the auto-update feature, effectively backing out of some of the more substantive questions.  Maybe they go with a negligence like balancing test, with a ruling so fact-specific that it’s not clear how it applies to a non-corporate entity like Cohen.  Maybe the ante is upped on how substantial the non-infringing uses have to be.  Anyway, any chink in the Sony standard would likely generate a new lawsuit against a P2P system operator, to push the ruling as far as it can go.

(BTW, the title of this post is not meant to imply that Sony is dead and Grokster will lose.  Rather, in a short while, we’re likely going to start referring to the Grokster standard for contributory and vicarious copyright infringement, rather than the Sony or Sony-Betamax test.)

Filed by Derek Slater at 3:53 pm under General news
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Joshua Meier is right in this regard: if “P2P networks are made illegal” - that is, if we could actually ban all technologies capable of allowing people to transmit files directly to each other over the Internet - there probably would be less infringement.  Glad we settled that.  But let’s explore what actually banning those technologies really entails.

Making ”P2P networks … illegal” involves more than flipping a switch and banning P2P networks narrowly.  As Ed Felten explains, crafting a definition that includes P2P and leaves out most other Internet technologies is basically impossible.

A result against Grokster would thus affect myriad other technologies. But would it affect P2P?  Not really. As the Darknet authors conclude, “the darknet-genie will not be put back in the bottle.”  The technology is already out there. It can be easily created and distributed by a hobbyist programmer. It’s already distributed by offshore companies and sites.  Shutting down these commercial entities will not even shut down their existing networks.  Shut down the big networks and you end up with highly interconnected and efficient ”small worlds” networks.  In this way, Grokster isn’t really about P2P - it’s just about all the other technologies that will be impacted.

Which is not to say that there would be no way to eliminate P2P.  Let’s not rehash the old can we regulate the Internet argument - sure we can. We could reshape the network so that ISPs or other traffic routers could have certain controls that would discriminate between types of traffic.  As FvL discusses here (search for “I’d rather filter” and follow comments), we could monitor all traffic and restrict anonymous communications so that we can track the source of distributed content.

[slightly updated 3 PM]

Filed by Derek Slater at 1:36 pm under General news
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(Some off the top of my head thoughts that are not really that novel but that I want to jot down anyway:)

First biggie: how is Sony treated as precedent?

A wholesale reverseal of Sony seems unlikely.  Instead, one could casually make some distinctions, as the district court opinion in Aimster did.  None of those distinctions seem particularly reasonable to me, but that doesn’t me the Court won’t use them.  If the Court does go this route, it will be important which distinction they choose to make.

Second, how does this affect those arguing on behalf of Grokster and Streamcast?  Obviously, they will need to highlight how the Court should be bound by what they said in Sony and how, as the 9th Circuit demonstrated, those rules clearly apply here.  At the same time, unlike in the courts below, it seems hard to believe that that alone will carry the day.  The normative arguments will play a much bigger role - what is the judicial system’s role here?  why is Sony as interpreted below the best rule?  what are the costs of changing it?

Filed by Derek Slater at 1:14 pm under General news
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Jonathan Zittrain spread the news as part of his keynote last night.  I’m glad my blurted “I don’t f-ing believe this” didn’t carry too far through the conference room. 

Tim Wu laid out the case for why the SC would grant cert. I only bought reasons 5-7, all of which explain but do not provide valid reason for the Court’s decision.  See the Grokster opposition to cert brief and FvL’s earlier post, but let me summarize some reasons why the cert grant is unwarranted.

The Court has gotten itself involved in Sony, Teleprompter, Fortnightly, etc., but that doesn’t provide any basis for getting involved here.  Those cases all involved fairly novel issues. Sony already set the standard in this area. You can draw distinctions between P2P and everything that’s come before it.  However, the underlying legal issues were already dealt with in Sony.  Indeed, that was the whole rationale behind the Grokster decision.

Moreover, the lower courts are still handling these issues just fine. There’s no circuit split that the Court needs to resolve.  The conflict over the consequences of passing that test is the substantial divergence between Grokster and Aimster, but Posner’s Aimster opinion is almost entirely dicta; the holding was entirely based on Aimster’s inability to show substantial non-infringing uses.  To the extent there is a conflict on that issue, it is minimal, and it’s not even clear that Posner’s standard in that narrow regard would not protect Grokster and Morpheus. 

Finally, and perhaps most importantly, Congress is already considering this very topic.  Congress is entirely capable of fine-tuning the liability standards should it choose to do so.  There is no urgent reason that the Court must solve this issue instead.

Filed by Derek Slater at 12:51 pm under General news
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The KaZaA case could be important in creating chilling effects for technology innovators in Australia (and potentially globally, given the sometime craziness of Internet jurisdiction issues).  I’ll grant that.  I doubt it will have much effect on P2P, not simply because people are already migrating away from KaZaA, but also because I don’t see secondary liability shutting down distribution of software that a hobbyist programmer can easily create and distribute.  But that’s an argument for a different day.

What are we learning from the KaZaA trial itself and the flurry of reports about it? From what I can tell, so far it’s a lot of posturing about two issues. First, does Sharman currently have control over its network?  Second, could Sharman create software that allowed the company more control?

The answer to the first question will certainly be interesting, but do realize that if liability rests on this ground (much as it did for Napster) it will have no effect on software like Morpheus, which gives Streamcast no control over its users.  A ruling against KaZaA on these grounds could be entirely consistent with the rationale in MGM v. Grokster.   I have no idea whether this would represent a chance in terms of Australia’s secondary liability standards, and I’m not saying that resting liability on these grounds is good or bad. I’m just pointing out that it would not necessarily conflict with the recent 9th Circuit ruling here in the US.

The answer to the second question is plainly yes. Of course Sharman could have designed its software differently and could be asked to design all future versions of the software differently. So could Streamcast. The important question is: can we rest liability on their being able to design the system differently? That’s a question the 9th Circuit answered in the negative and will be critical in the ruling in this case.  But as far as debating Sharman’s technical abilities at trial, this issue isn’t all that interesting.

Filed by Derek Slater at 4:55 pm under General news
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Decent chance I’ll be there - you should check it out too if you’re in the neighborhood:

**DJ Spooky**      presenting “Rhythm Science”–a live multi-media presentation of the history of digital art and media

**Mark Hosler of Negativland**      presenting “Adventures in Illegal Art”–a presentation illustrating the many projects, hoaxes, pranks and “culture jamming” of the band Negativland

**Nelson Pavlosky, Founder of the Free Culture campus chapter movement**  introducing the Free Culture campus chapter movement

For More Information:

Filed by Derek Slater at 7:04 pm under General news
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More from the Future of Digital Media series

Filed by Derek Slater at 12:43 pm under General news
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The wonderfully named Irina Slutsky has written a great article on Jason Kottke’s on-going problems with Sony.

Filed by Derek Slater at 6:30 pm under General news
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Donna’s made about a bazillion great posts over the last few days - go, now.  Sorry for my absence here - been tied up with a project that I will hopefully share with y’all within the next few weeks.

Filed by Derek Slater at 5:22 pm under General news
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The 9th Circuit yesterday ruled in Rossi v. MPAA that the DMCA notice and takedown provisions only require the copyright holder to have a “subjective” good faith and do not require analysis of whether the copyright holder made a reasonable investigation subject to an “objective” standard.  (via Techlawadvisor).  Don’t have time to blog more now, but the opinion is quite short and worth reading in full.

Filed by Derek Slater at 5:19 pm under General news
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