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Posted by Citizen Bob on 11/02/06 14:52
On Thu, 2 Nov 2006 04:57:00 -0800, "Richard Crowley"
<rcrowley@xpr7t.net> wrote:
>"Citizen Bob" wrote ...
>> Scarey Tech - Just In Time for Halloween
>>
>> Things that go beep in the night
>> By Peter Lewis, Fortune senior editor
>
>> The scary thing is, the R.I.A.A. seems to have no concept of fair use.
>
>It appears to be"Citizen Bob" and Peter Lewis who
>have no concept of "fair use". Get a clue.
You get a clue. See the thread entitled "Judge: File-swapping tools
are legal"
+++
Copyright 2006 CNET Networks, Inc.
http://news.com.com/2100-1027_3-998363.html
Judge: File-swapping tools are legal
By John Borland
Staff Writer, CNET News.com
Published: April 25, 2003, 12:46 PM PDT
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."
The ruling is the second major setback to date to the entertainment
industry's efforts to keep a tight rein on online file-swapping,
following a similiar decision in the Netherlands last year that found
that Kazaa was not liable for its users' copyright infringements. If
upheld, the decision could lead artists, record labels and movie
studios to cast new legal strategies that they have until now been
reluctant to try, including bringing lawsuits against individuals who
copy unauthorized works over Napster-like networks.
According to the major record labels, file-swapping is a major
contributor to declines in music sales over the past few years, a
trend that has thrown the industry into disarray. Debt-ridden media
conglomerates are now considering sales of their music divisions even
as they begin to test paid online music services intended to compete
with free file-swapping networks and turn the tide.
Attorneys called the ruling a blow for entertainment and record
companies trying to stop the networks used to swap unauthorized copies
of their works.
"This is a very serious setback for the record industry and other
content industries, because they've uniformly won these cases in the
U.S.," Mark Radcliffe, an intellectual property attorney at Gray Cary
Ware & Freidenrich said.
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 of America (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."
Recording industry officials said they saw some good in the ruling,
but that they too would immediately appeal to the 9th Circuit Court of
Appeals.
"We are pleased with the Court's affirmation that individual users are
accountable for illegally uploading and downloading copyrighted works
off of publicly accessible peer-to-peer networks," said Recording
Industry Association of America (RIAA) chief executive officer Hilary
Rosen in a statement. "(But) businesses that intentionally facilitate
massive piracy should not be able to evade responsibility for their
actions."
Wilson's decision comes in the most closely watched Net copyright case
since Napster's demise.
The two pieces of file-swapping software affected by Friday's ruling
remain among the most popular downloads on the Net, although they
operate deep in the shadow of market leader Kazaa. Morpheus--once the
undisputed leader--has fallen to about 120,000 downloads per week,
according to Download.com, a software aggregation site operated by
News.com publisher CNET Networks. Kazaa, by contrast, was downloaded
more than 2.7 million times during the past week.
The RIAA and the MPAA sued Streamcast, Grokster, and the original
parent company of Kazaa's software in October 2001, and the case has
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.
The decision does not directly affect Kazaa, at least not immediately.
At the time that Grokster and Streamcast were arguing for summary
judgment, Wilson had not yet ruled that the Australia-based Sharman
Networks could be sued in the United States.
Sharman is scheduled to meet with RIAA and MPAA attorneys in court on
Monday, to argue over whether its counterclaim against the record
labels and movie studios should be dismissed. Friday's ruling,
however, could change the direction of that hearing.
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 (VCR). 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, an Electronic 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."
+++
--
"First and last, it's a question of money. Those men who own the earth
make the laws to protect what they have. They fix up a sort of fence or pen around what they have, and they fix the law so the fellow on the outside cannot get in. The laws are really organized for the protection of the men who rule the world. They were never organized or enforced to do justice. We have no system for doing justice, not the slightest in the world."
--Clarence Darrow
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