Vamp
5c077
Premium
join:2003-01-28
MD | Thats stupid..
Maybe we should go after vehicle manufactures because they make vehicles that bank robbers get away in? Therefor they "facilitate" Crimes.
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foamy | I'm psycho |
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Transmaster
Don't Blame Me I Voted For Bill and Opus
join:2001-06-20
Cheyenne, WY
 ·Qwest.net
| don't be despondent yet all the Supreme Court did was send the issue back down to the courts for full litigation, remember court cases in question where bench rulings. Now they will have to go to full trial with a jury and everything else. It isn't over yet, and this is going to cost the RIAA's minions 10 of millions of dollars. Aren't most of the P2P's off shore now. I would like to see the recording industry tangle with the manufacturers of all of the MP3 players. There are many of these companies to whom the entire recording industry is a corner ma and pop drug store in terms of capitalization.
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JSRoman
Premium
join:2005-03-10
Callahan, FL
| reply to Vamp
Bad example, since most automobile usage is for legal means. It is a fact that most file sharing is of copyrighted material for illegal use.
Fileswapping programs will have to find a way to prove that material being downloaded is actually not copyrighted material. In the next couple of weeks expect some huge lawsuits . |
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Primis1
join:2005-06-13
Coldwater, MI
| quote:
Bad example, since most automobile usage is for legal means. It is a fact that most file sharing is of copyrighted material for illegal use.
You're completely missing the point and impact though.
What is "file-sharing" and what defines the facilitation thereof? Google is often used for tracking down and downloading copyrighted materials. Does this mean they can be sued? Even though 99.99% of what they search for is *not* illegal?
Does this make indivdual ISP's liable for "faciliating"?
Seriously, with these broad of definitions as they're playing with just about anyone or anything could no be open to be sued for "facilitating" file-swapping.
The getaway car analogy is not far off at all (and one I've used before). |
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inciter
Noobie
Premium
join:2000-08-30
Rohnert Park, CA
| said by Primis1  : quote:
Google is often used for tracking down and downloading copyrighted materials. Does this mean they can be sued? Monday's ruling, Souter said lower courts could find the file-sharing services responsible by examining factors such as how companies marketed the product or whether they took easily available steps to reduce infringing uses.
We all know some p2p software is very shady and allow the files in question to be shared. MSM can transfer files of this type so they could fall but fact is as we all know it's the Kazzaz form of software that is targeted. Google is far from being a Kazzaz model for piates.
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Playing Table Tennisis not a matter of life or Death, It's much more important than that. |
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Kaltes
Premium
join:2002-12-04
Los Angeles, CA
| reply to Transmaster
No, it *IS* over
said by Transmaster :don't be despondent yet all the Supreme Court did was send the issue back down to the courts for full litigation, remember court cases in question where bench rulings. Now they will have to go to full trial with a jury and everything else. It isn't over yet, and this is going to cost the RIAA's minions 10 of millions of dollars. Aren't most of the P2P's off shore now. I would like to see the recording industry tangle with the manufacturers of all of the MP3 players. There are many of these companies to whom the entire recording industry is a corner ma and pop drug store in terms of capitalization. There will not be a trial. The dispute was a matter of LAW, and trials are for resolving FACTS. The facts are not disputed. The trial court will dispense with the case by issuing an order that the plaintiffs motion for summary judgment is GRANTED. the end. |
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aeiouy
join:2004-08-05
Fort Worth, TX
| reply to Vamp
Re: Thats stupid..
This is a horrible slippery slope. It is going to be open-season on P2P software developers. First they will sue and take down the big ones, then they will threaten and run out the smaller time non-commercial players.
Eventually all P2P software will be outside the US and other countries where the MPAA/RIAA have a reach.
Finally, they will use this as an imeptus to finally push through their lobbying efforts, and get some real draconian legislation passed in order to fully control file-sharing and distribution on the internet for US citizens.
I would hope for a win in a court case myself. It is not clear to me a jury would find the defendants guilty of infringement. But regardless this has opened the door wide for the MPAA and RIAA to go after software developers of all sorts. |
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GOLFnSUN
Enjoy the sun
Premium
join:2002-03-03
Avalon, NJ
 ·Sprint Mobile Broa..
 ·Comcast
| reply to Kaltes
Re: No, it *IS* over
said by Kaltes : There will not be a trial. The dispute was a matter of LAW, and trials are for resolving FACTS. The facts are not disputed. The trial court will dispense with the case by issuing an order that the plaintiffs motion for summary judgment is GRANTED. the end. I'm sorry, but the SC said there will be a trial:
»money.cnn.com/2005/06/27/technol···ndex.htm
But Monday's ruling by the nation's highest court does not end the battle. The Supreme Court order sends the case back for trial to the same lower court that had originally ruled in favor of Grokster Ltd. and StreamCast Networks Inc., the file-sharing services named in the case. Hollywood now must prove in court that Grokster was founded with the purpose of enabling infringement, not just that that was just a byproduct. Hollywood may win, but it isn't a foregone conclusion.
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Kaltes
Premium
join:2002-12-04
Los Angeles, CA
| said by GOLFnSUN : I'm sorry, but the SC said there will be a trial: The supreme court didn't say that, the NEWS ARTICLE did. Big difference.
It is POSSIBLE that there would be a trial, if the new legal rule creates NEW issues of fact that must be resolved, but as far as the news articles reveal thus far, there would be no need for a trial.
Trials only take place when material facts are disputed, there have been no factual disputes in this case, only legal disputes. Those legal disputes have now been resolved. |
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TScheisskopf
World News Trust
join:2005-02-13
Belvidere, NJ
·Sprint Broadband D..
| reply to Vamp
Re: Thats stupid..
Another take by Matt Yglesias, who is no dummy:
I've been finding the press coverage of the Supreme Court's unanimous decision in favor of copyright holders in the Grokster case to be shockingly unenlightening, but as I read Justice Souter's opinion (PDF) this may not be quite so bad as it seems. He upholds the old Sony rule that the mere fact that a technology has infringing uses is not grounds for holding its maker liable for infringement. He also seems to reject the plaintiffs' desire to transform "substantial non-infringing use" from a qualitative standard (are there non-trivial legal uses of the technology) to a quantitative one (is the technology, in fact, mostly used legally). Instead what I think he's saying is that Grokster and StreamCast can be held liable not for their technology, but for their marketing campaign which was allegedly geared toward advertising their products' infringing uses.
More: »yglesias.tpmcafe.com/story/2005/···5956/954 |
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snot on your life
| did you ever have any doubt they would win?
Look at how they just ruled on the ability for one private organazation's ability to "Steal" someones property from them without (in my opinion) adequate compensation...
Say for example, I have a little place with easy access to the sea, and some large comercial company wants to put up a nice hotel there.... Think I'll get yearly payments on what I lost.... snot on your life... |
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Kaltes
Premium
join:2002-12-04
Los Angeles, CA
| reply to TScheisskopf
assorted stupidity
#1. Yglesias is a partisan liberal blogger isn't he? Wow, some credentials. I can see how that makes him qualified to render opinions on intellectual property law 
#2. Yglesias grossly mistates the Sony rule, probably because Souter himself misstated it and Yglesias doesn't know any better.
#3. Non-lawyers can't understand a supreme court case that deals with a techical legal field like IP merely by reading the opinion. You would have to go read another dozen or so cases that form the backbone of copyright law BEFORE you could even begin to grasp how this case fits into the puzzle, let alone offer insightful conclusions about what this case does and does not mean. |
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GOLFnSUN
Enjoy the sun
Premium
join:2002-03-03
Avalon, NJ | And are you that legal expert?? |
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Kaltes
Premium
join:2002-12-04
Los Angeles, CA
2 edits | said by GOLFnSUN :And are you that legal expert?? I am an IP attorney. I am by no means the last word on this subject, but I am waiting for the opinions of lawyers who are familiar with IP law to see where they come down in their analysis. I haven't finished reading the opinion. It is hard for me to read much of it without rolling my eyes and moving on to something else. I am going to have to force myself through it, of course, because I will need to know this case well for work, but I am very disappointed in the analysis thus far. When compared to the outstanding analysis in the trial court case, this just goes to show how the supreme court will radically alter the law merely to reach the result they want to reach in a particular case.
No one can dispute that Grokster is an enterprise founded on impropriety. The problem was, how do you punish them without also putting innovation itself in peril? You can't. You have to cause collateral damage if you want to nail Grokster.
My tentative:
It looks like the USSC went ahead with a annoyingly-ambiguous rule which replaced a clear, powerful rule handed down in the betamax case. The practical effect of this will be that EVERY SINGLE GODDAMN ALLEGEDLY INFRINGING TECHNOLOGICAL DEVICE MANUFACTURER OR SOFTWARE PROGRAMMER, will be hauled into court and hammered for years potentially by RIAA/MPAA cartel lawyers. This allows the copyright monopolists to squash innovation with litigation, EXACTLY what the pro-innovation types were afraid of. Getting bankrupted fighting off lawsuits that allege you were out to infringe all along, and spawning endless rigged and manipulated 'polls' and 'studies' that purport to prove that such and such device is primarily used for infringement.
I have little hope that my final conclusion will turn out any cheerier given the language I have read thus far.
edit: finished reading the case. it is as bad as I thought. clear rules established both in Sony and many other cases in regard to contributory infringement have been SKEWERED, and replaced with a strange, moronic rule that focuses on the INTENT of the defendant. Theoretically, as long as you hide your evil intentions well, never mentioning your love of infringement in internal memos, marketing, etc, you could get away with it. Of course regardless of intent, you WOULD BE SUED and hammered in court until you proved, probably after a trial, that you have no 'unlawful objective'. This is so ludicrously fact-sensitive that it allows the RIAA/MPAA to haul almosy anyone into court and subject them to a lengthy, expensive process, which would EASILY destroy any new upstart innovator. This is exactly what the betamax opinion tried to prevent. We have already had printer companies (lexmark) try to use the DMCA to hold a monopoly on ink cartridges, and that was before this case! Now there is the potential for things to get much worse.
The only silver lining is that IP lawyers are going to get a lot more work, so I will probably benefit financially from this ruling. |
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Class Clown
| Hey Kaltes,
Please do us all a favor n' tell us what you really think! 
So far... I think I could read between your lines.. and I anticipate you are likely hitting the nail on the head using a mexican speed wrench.. or is that a wench?? I ferget... |
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alllitigations
| reply to Vamp
Re: Thats stupid..
Its about the money! You can sue for trivial stuff, you can sue for non-trivial stuff.. but ya know, in all reality, this nonsense will come back to bite the Bush administration more than passing new DMCA provisions secretly, or not so secretly in the NEW AND IMPROVED PATRIOT ACT-thebastages-! Contributory facilitation is now sue-able to the highest court in the land.God bless America. |
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russotto
join:2000-10-05
Collegeville, PA
| reply to TScheisskopf
Right. Software writers dodged a bullet here -- the Supreme Court delivered a 9-0 decision where they weaseled out of confronting the issues head on (a SCOTUS specialty since 1789 or so). Much better than what I expected, a 5-4 decision gutting Betamax.
Basically this seems to stick with established law concerned vicarious liability. |
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PDXPLT
join:2003-12-04
Banks, OR
| reply to Primis1
said by Primis1 : You're completely missing the point and impact though. What is "file-sharing" and what defines the facilitation thereof? Google is often used for tracking down and downloading copyrighted materials. Does this mean they can be sued? Even though 99.99% of what they search for is *not* illegal? Does this make indivdual ISP's liable for "faciliating"? Seriously, with these broad of definitions as they're playing with just about anyone or anything could no be open to be sued for "facilitating" file-swapping. The getaway car analogy is not far off at all (and one I've used before). The getaway car analogy is way off.
The case wasn't about, say, Dell, who makes PC's that someone might use for copyright infringement (or alot of other illegal things). But Dell doesn't primarily market its products as devices to facilitate illegal activity.
The case was about Grokster and Streamcast, with their wink-wink, nudge-nudge, "uh, yea, I guess you can use this to exchange home videos with your friends, that's it, yea". For these guys, the reality is that their whole business model is based on facilitating illegal activity. Justice Souter summed it up, according to the NY Times article: quote:
"The record is replete with evidence that from the moment Grokster and StreamCast began to distribute their free software, each one clearly voiced the objective that recipients use it to download copyrighted works, and each took active steps to encourage infringement"
It's the "active encouragement" of illegal activity that got them in trouble.
This was a 9-0 unanimous decision. It wasn't even close. And remember this wasn'y directed at the concept of p2p generally, only at the way Grokster and StreamCast was marketing it. Under the decision, if you have a p2p company that was actually doing something to discurage illegal use (the way, say, eBay polices its auctions against illegal activty), they would be OK.
I think the "drug paraphenalia" example is better than the "getaway car" one. Yea, bongs and hash pipes can be used with tobacco, but everyone knows that 99+% of their use is illegal, so they are outlawed on some localities. |
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Primis1
join:2005-06-13
Coldwater, MI
| quote:
This was a 9-0 unanimous decision. It wasn't even close. And remember this wasn'y directed at the concept of p2p generally, only at the way Grokster and StreamCast was marketing it. Under the decision, if you have a p2p company that was actually doing something to discurage illegal use (the way, say, eBay polices its auctions against illegal activty), they would be OK.
I understand what you're saying regarding intent and just "how it was marketed". The claim being made here of "intent" is at best *very* suspect and flimsy.
The problem is that by ruling in this peculiar way, based on this slim argument of the "intent" in marketing, they've opened the door later for someone else to come back and say "...but you ruled against Grokster" in a situation that isn't relevant or related to "marketing intent". The argument will now become "But everyone KNOWS you can do this over it", and boom, suddenly everyone and everything is a culprit. And if anyone argues it they'll scream "OMG!!! GROSKTER PRECEDENT!! GROKSTER PRECEDENT!!" until they get their way.
You guys sometimes forgot, and initial intended precedent is rarely then defined or considered the same way later on. And this is precisely a case of where they'll be quite happy to get even just this, because they know they can twist it to how they want not too far down the road, and have their way. |
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NGOwner
join:2000-11-21
Leawood, KS
| said by Primis1 : quote:
The problem is that by ruling in this peculiar way, based on this slim argument of the "intent" in marketing, they've opened the door later for someone else to come back and say "...but you ruled against Grokster" in a situation that isn't relevant or related to "marketing intent". The argument will now become "But everyone KNOWS you can do this over it", and boom, suddenly everyone and everything is a culprit. And if anyone argues it they'll scream "OMG!!! GROSKTER PRECEDENT!! GROKSTER PRECEDENT!!" until they get their way.
You guys sometimes forgot, and initial intended precedent is rarely then defined or considered the same way later on. And this is precisely a case of where they'll be quite happy to get even just this, because they know they can twist it to how they want not too far down the road, and have their way. You are absolutely right. This is what Grokster and StreamCast tried to do using the Betamax ruling as a shield to protect their creation.
My opinion is, had Grokster and StreamCast not touted their products' ability to source and obtain copyrighted material and had instead only touted the legitimate and legal uses of its software, the SCOTUS verdict might have been completely different.
[NG]Owner
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