[FoRK] Rip. Mix. Burned.

Luis Villa luis.villa
Mon Jun 27 17:59:16 PDT 2005

On 6/27/05, Ian Andrew Bell (FoRK) <fork at ianbell.com> wrote:
> Under the "it may not be as bad as it seems category" this judgment
> implicates not necessarily P2P networks in general, but in fact those
> that encourage music and movie sharing over their networks. The
> effect, however, will be that such networks have to weigh the cost
> and possibility of a volley of pre-emptive lawsuits by Hollywood, and
> anyone designing devices had better consider whether their omission
> of DMCA-approved copyright protection constitutes "encouragement".

You've missed footnote 12 to the decision, which states fairly clearly
that the inclusion of DRM, etc., is only relevant if the first test
('are they explicitly encouraging infringement') is already
applicable. So the more likely outcome is that all p2p will come with
big warning stickers saying 'don't use this for copyright violation',
and lots of instructions on how to download shakespeare. Oh, and lots
of verbal warnings to new hires that they are never to talk about the
rampant filesharing their tools will allow. As someone put it on one
of the group blogs today, it'll be like 'tobacco shops' and their
not-a-bong-we-swear products. Anyway, footnote 12 appears to make it
fairly clear that taking those steps would innoculate you. [Note that
Fred Lohman of the EFF seems to disagree strongly with this, but then
again, that's how he gets paid :)

It's even been speculated that under this ruling, 2600 might have won
at least the copyright-infringement portion of the decss case, though
the reverse engineering bits would probably still have nailed them.
It's important to understand that the EFF could not have asked for a
more repulsive client- Grokster's internal and external actions were
clearly in favor of 'steal as much as you want, as quickly as you
can'. Despite that, which elicited obvious sympathy from the justices
for MGM (I went to the case) they got to the supreme court, and sony
was protected.

> By my interpretation of this judgment, companies like Apple could be
> sued for products and campaigns like their 2001 "Rip. Mix. Burn."
> campaign.. which drove the music industry crazy.

That does appear to be correct; they cite advertising as a key measure
of intent, and Rip, Mix, Burn was pretty blatant. Of course, in the
oral arguments the industry conceded that ripping to an iPod was
legal, so that particular issue might be moot in the future anyway.

OTOH, it does look that this logic makes something like bittorrent
almost completely safe, given the insistence from that camp from day
one that it was for use for things like linux distros, and the massive
use of it for exactly that purpose.

> In America, anyway, this will further perpetuate the entertainment
> industry's collective denial of the elephant in the bathroom, and
> make their eventual decline and demise that much more rapid when the
> time comes.

It has been speculated that the Sup. Court threaded this needle deftly
enough that it actually not only will piss off the content industries
because of its preservation of Sony, but also will forestall further
legislation, by allowing the pro-innovation forces (like Intel) to
claim that the industry already has the bludgeon it needs to kill the
next Napster dead, and doesn't need any more legislation.

Anyway, for better reading than the NYT article, try:

I've also blogged about it here:

> -Ian.
> -----
> http://nytimes.com/2005/06/27/technology/27cnd-grokster.html
> June 27, 2005 - Court Rules File-Sharing Networks Can Be Held Liable
> for Illegal Use
> The United States Supreme Court ruled unanimously today that Internet
> file-sharing services like Grokster and StreamCast Networks could be
> held responsible if they encouraged users to trade songs, movies and
> television shows online without paying for them.
> The case, which pitted the entertainment industry against technology
> companies in the continuing battle over the proper balance between
> protecting copyrights and fostering innovation, overturns lower court
> decisions that found the file-sharing networks were not liable
> because their services allowed for substantial legitimate uses. The
> justices said there was enough evidence that the Web sites were
> seeking to profit from their customers' use of the illegally shared
> files for the case to go back to lower court for trial.
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