Well, as many of you already know Grokster lost in MGM v. Grokster, but not as badly as one might have expected. Instead of saying that a technology is illegal if it allows for infringing, the court ruled that it is only illegal if a company actively …

Some bad news from SCOTUS(Blog).

The Supreme Court ruled unanimously that developers of software…

I have to strongly disagree. Time-shifting back in the day was all well and good, but it’s better to use caution when advocating that view today. The Judges in the Sony case allowed time-shifting mainly because at that time there was little effect of the use upon the potential market for the copyrighted work.

Back in the 80′s there were no DVD/VHS of freely broadcast television shows. Not so today. For example, let’s look at the DVD medium and the UMD medium (it’s the little discs that the new Sony PSP uses). Take Hellboy for example. It’s sold on DVD media, and also sold on UMD media. Thus, if a consumer/licensee of the DVD media were to reproduce the content viewable on the PSP’s memory stick, the consumer would then have no need to buy the UMD version. And if that’s the case, Sony has just lost a potential sale for it’s UMD version of the movie.

Companies invest money to create various things, where they hope to recover such investments through consumers’ watching/buying of such things. Should they have a right to revenue recovery? Should they have a right to control who they show their creations to? Can anyone tell me why they should not, and why a company that has invested US$200 million to produce a movie just HAS to share that with the rest of the world free of charge? If you are running the company, would you make such an investment if you are expected to see zero return? If all of the professionals stops making movies and the market is filled with low budget garage movies made by some zealous students with nothing better to do, would you as a consumer feel that your life is much better because “the world is finally free”?

We don’t live in a communist system where everyone is supposed to share everything and the sharing is its own reward. The communist system has been proven to be a failure. Don’t be naive.

Don’t act like some sad sad people that blame their personal faults and failures on “DA SYSTEM” all the time. That just shows how much of a basket case you are.

The Supreme Court decided unanimously that the Appellate Court had misinterpreted the rule in the Betamax case. It did not overturn Betamax.

For those of you who haven’t been bothering to keep score, the Betamax case is the one the movie studios brought against Sony for selling VCRs. You may remember that Jack Valenti compared VCRs to Jack The Ripper, and swore up and down that they would eviscerate the industry. In that case, the Supreme Court ruled that even if some
technology could be used to infringe on copyrights, it could not be guilty of contributing to that infringement if it was capable of “substantial non-infringing uses.” The Court found that taping Mr. Rogers and “time shifting” were substantial non-infringing uses
and saved the movie business from self-immolation. In 1984, when the Betamax case was decided, box office revenues were responsible for 80% of movie industry income. Last year, the figure was 20%. A large part of the historic shift was due to those demon VCRs.

Betamax was a godsend to the tech sector. All those code writers and black box builders had a safe harbor for their inventions; as long as there was a chance what they were doing had a “substantial non-infringing use,” if it could also be used to duplicate copyrighted works, or distribute them, that didn’t matter. They couldn’t be sued out of existence. As a result, we got CD burners, DVD burners, iPods, email, Instant Messengers, and Napster.

But the guys at Napster screwed up. They used central servers where you could go to get those free (and unauthorized) downloads of copyrighted songs. Because Napster owned those servers, they controlled the contents, and the courts found them guilty of direct infringement by distributing unauthorized copies of copyrighted works.

The next generation got smarter. Grokster and Morpheus don’t require central servers. Their software connects the computer of someone who wants to copy a file with the computer of someone who has the file. No real middleman; the Grokster and Morpheus people never possess the file, so there is no direct infringement.

So, the RIAA was forced to go after these guys on the grounds that they were infringing “contributorially” (inducing others to infringe directly) or infringing “vicariously” (profiting from someone else’s infringement while declining to exercize a right to stop or limit it). Together, these are known as secondary infringement.

The trial and appellate courts said the RIAA ran squarely up against the Betamax doctrine because the p2p networks were capable of substantial non-infringing use. Evidence introduced by the RIAA appeared to support the argument that at least 90% of the files being traded were of copyrighted material. (Ironically, in the Betamax case, the court found that Sony’s claim that 9% of shows being taped were legal was enough to be a “substantial non-infringing use.”)

Here’s where the defendants got sunk. The Court said today that the fact that there was a substantial non-infringing use would not always be enough to protect a defendant. The Betamax rule would protect an inventor from a slam dunk lawsuit based strictly on the fact that his or her device could be used to infringe on copyright, but it wasn’t protection against every type of infringement claim, including what they called “fault based liability.”

Back in Betamax, the court considered whether a defendant could be guilty of secondary infringement simply by distributing a commercial product like a VCR or p2p software. The court actually said “YES” and drew on an established principle of patent law, where, in certain circumstances it can be presumed that the distributor intended that the product being distributed would be used to infringe on someone else’s patent. Think cable descramblers here. The intent to infringe is obvious because the descrambler doesn’t have a legal use other than beating the legal scrambler patent.

The court went on to say that the answer could still be “YES” in cases where there was more “acute fault” than the mere understanding that the device could be misused.

And the court found that the record below indicated there was more than enough fault by both Grokster and Morpheus, who had purposely positioned themselves to take Napster’s place and had made no real effort to disguise the fact that they were in the business of permitting the transfer of copyrighted material. There is a lot of reference to internal documents from both companies that prove the point, and both defendants had help desks where people would say “How do I download Britney Spears?” and they would give detailed instructions. That looked like contributory infringement to Justice
Souter. And, as the record showed, they both sold streaming advertising while you were on their sites, and they were profiting from it, so that was strong evidence of vicarious infringement as well.

So the case is consistent with Betamax in this very important regard.

The clearest point the opinion makes to the next generation of American p2p designers is to not even think about the elephant in the living room. Build your file trading program and make sure every time you mention it, you make sure that the only files you talk about trading are Shakespeare, the Bible and Janis Ian.

The new risk the decision presents is not only that these designers have lost something they never really had, but that there is another door open at the courthouse now where they can be dragged in and bankrupted. That could chill investment in new development.

As far as foreign p2p designers are concerned, today was just another day at the office. The case doesn’t reach them.

Oh, and, after she crowed “we won!,” Hilary Rosen reminded everyone that winning in court was not the same as winning in the real world, and she counseled everyone to work together to find a way to make p2p pay for everyone. Someone should point out to the newly magnanimous observer that this case was started on her watch at the RIAA, and she had a great chance to make that point when she ran the place. I am not impressed by her voice of reason now that she no longer has her own finger on the trigger. People are commenting on how accurate and rational her advice is. I have to remind them that “Our Lady of The Bloody Hands” is still an industry hack, living on a pension funded by diverted royalties.

SCOTUSblog is reporting that the decision in MGM v. Grokster has gone in MGM’s favour.
The judge announced that
We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression …

So, the Supreme Court ruled that programmers who write a program which facilitates copyright law violation i.e. Grokster et. al. can be held responcible for what users do with their software.

“We hold that one who distributes a device with the obje…

If so, I suggest we all roll with the punches. Why not? It is pretty clear that something has to change… isnt it?

I mean, we live in an organic world that grows weed(s) out of control… where wild animals and insects prey as they see fit… and where humanity is fully vested in developing a system of absolute coordination, perfected.

We are the creators of the Creation… created in the Creator’s own image…right? And majority rule, when it is running at like the 90% – 10% split… well its damn near invincible now isnt it?

Terrorism, a war on drugs, eminent domain, public education, and now this Grokster thingy… sure, it means many things to many people with many different perspectives. You know what it means to you.

Be careful.

Take care.

Think….

I think now is a good time to be greedy. Now is the time to use the law to benefit ourselves personally. I mean, the Supreme Court told me the other day to use my managerial influence and well, sheer brilliance… to dominate the world. So in the name of economic development, I think I will.

And now we are protecting copyright 1st… and making life more convenient and empowering only after the economic structure of intellectual property is secured… in this country… in some ways… to the best of our ability… we hope….

Again… as a creator… I am important. To my peers I say this: I will now commence my agenda, put in place this day at this hour, to make a buck off of you in virtually any manner I so choose, as long as I am doing it in a manner consistent with the tools I am allowed to use in the way that I am allowed to use them.

I am the next Bill Gates. My power is crazy big.

So I have an idea…

I think that kids are a great market. I mean they are naive, very impressionable, and they have big fat wallets attached to their hips often times. Or at least a rope attached to the parents wallets.

So I am thinking that someone who knows how to build a peer-to-peer file trading network should do so with me. I am going to take it to the schools wrapped inside of an “Entrepreneurship Education” program that is being funded in part by the US Government through the Small Business Administration or some other like minded group of government managers. I mean, they are crazy hungry to churn out more entrepreneurs so that more jobs can be created. Well, we are going to turn every kid in the school into an entrepreneur, an owner of their own business, a business that organizes the marketplace as a network, a network that distributes ownership of its primary asset….

Your Identity.

It is no longer enough to be merely a citizen of this country. You must be an owner of America, not just in America. Universally Distributed Private Ownership of the socio-economic marketplace that is America is the goal. One identity at a time….

Kinda gives a whole new meaning to “An Army of One”… doesnt it?

Eminent Domain took something away.

MGM vs Grokster took something away.

From you… joe-citizen.

An individual life has less power than a corporation with one owner, one member, one employee. Both are alive in the eyes of the law and the IRS

Its a simple formula really. Either you get it or you dont. The thing is, no one person can build this revolution.

To be cliche… This revolution will be televised… network wide… copyright in tact and disregarded.

Toodles
NZN