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PDXPLT
join:2003-12-04
Banks, OR
| reply to Primis1
Re: Thats stupid..
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. | |
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. | |
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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It is impossible to create an idiot-proof product. Humanity is simply too adept at churning out better idiots. | |
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