Transferring Responsibility

Today the Supreme Court ruled that companies offering file-sharing software can be held liable for copyright infringement if there's evidence they intended to facilitate illegal duplication and transfers. The Court overturned a 9th Circuit ruling that said Grokster and StreamCast, like manufacturers of VCRs, are not responsible for illegal uses of their products.

Last year John Perry Barlow celebrated Grokster's temporary victory in an interview with Reason, while Nick Gillespie welcomed the consumer-empowering influence of file-sharing services.

Comments

rafuzo | June 27, 2005, 12:18pm | #

I, for one, welcome our new Supreme Court overlords

Eion | June 27, 2005, 12:26pm | #

So in other words, the Court is in favour of protecting intellectual property rights.

Unless the government is the one you're trying to protect them from.

rst | June 27, 2005, 12:29pm | #

Me too. I can't wait to see who else can bear responsibility for my actions.

Pussies.

Jim | June 27, 2005, 12:29pm | #

So if I go on some murderous killing rampage, somebody has to held accountable for my illegal activities. Sorry Mom and Dad. I know you didn't indend for me to break the law, but you had to know it was possible.

MP | June 27, 2005, 12:30pm | #

So much for my radar detector.

Warren | June 27, 2005, 12:31pm | #

FUCK FUCK FUCK
Motherfucking SCOTUS
Jesus fucking Christ
I need a drink

Eion | June 27, 2005, 12:35pm | #

Well, Warren, at least you can mail-order your drink off the internet now.

Mo | June 27, 2005, 12:37pm | #

Is it just me or does this open the door for lawsuits against firearms manufacturers? Is there anyone we can elect that would pack the court full of people that actually understand the constitution?

Mark Borok | June 27, 2005, 12:43pm | #

"Is it just me or does this open the door for lawsuits against firearms manufacturers?"

If I understand the ruling correctly (and I probabaly don't) this would only be possible if the firearms manufacturers were marketing their wares directly to criminals.

Number 6 | June 27, 2005, 12:45pm | #

Ok. I understand. Stare Decis applies when the government wants to steal your land. It does not apply when you want to trade files.

Sure. Makes sense to me.

Ben | June 27, 2005, 12:46pm | #

Not having read the opinion, it sounds like the Court tried to make a non-decision, limiting the decision to the facts of the case before it. The "easily available steps to reduce infringing uses" is going to cause lots of trouble, though.

kevrob | June 27, 2005, 12:46pm | #

Wait a minute. The Court said that the Grokster case can go to trial. If a filesharing service takes reasonable* steps to discourage illegal activity, it should be in the clear, right? Whether Grokster encouraged illegal behavior is a matter of fact for the trial court to decide, right?

Kevin

* Yes, I know this will be twisted six ways to Sunday.

Dave | June 27, 2005, 12:50pm | #

I will continue to happily download pirated software and free music. This doesn't really upset me and if and when regulation catches up with file sharing I will be really pissed though.

Number 6 | June 27, 2005, 12:51pm | #

Kevrob-Yes, but 'primary intent' is nebulous at best. As you said, it will be twisted to mean whatever the court wants it to mean.

ed | June 27, 2005, 1:00pm | #

"About 20 independent recording artists, including musician and producer Brian Eno, rockers Heart and rapper-activist Chuck D, supported the file-sharing technology to allow for greater distribution of their works."

Nope, sorry guys, but there are thousands (at least) of sites where artists can voluntarily make their music available for free downloads ("distribution"). All you have to do is Google the artist's name to find these places. All of them allow the artist to fully control the dissemination of his property (download, stream-only, etc.). So distribution is now a moot point. A person with some time on his hands can start downloading free music, authorized by the artist, right this second and never run out of songs to download. All free, all sanctioned by the artist. All legal. If the artist wants to make the songs available, he can. But this conversation is not about artists' rights, is it?

Number 6 | June 27, 2005, 1:03pm | #

You mean "record companies' rights", ed, that that is very much what this case is about.

mark | June 27, 2005, 1:08pm | #

I will continue to happily download pirated software and free music.

Then you're a thief, and a jackass.

Evan Williams | June 27, 2005, 1:11pm | #

"Wait a minute. The Court said that the Grokster case can go to trial. If a filesharing service takes reasonable* steps to discourage illegal activity, it should be in the clear, right? Whether Grokster encouraged illegal behavior is a matter of fact for the trial court to decide, right?

It seemed to me that they didn't need to take steps to discourage illegal activity---they just had to refrain from encouraging it. So as long as nobody can prove that they didn't "encourage" illegal file sharing with the design of their product, they should be fine.

However, as we all know, logic is less important in the courts than influence and suave, hyperbolic appeals to emotion.

But, what I'm wondering is, are there any feature in Grokster, et. al., that are exlusive to illegal filesharing? In other words, is any part of the program designed specifically to facilitate illegal sharing, and cannot be used to perform any legal acts? If so, they may have a good case, using this ruling. But I can't imagine that Grokster et. al. would be so foolish as to do something like that in the first place.

My fear, however, is that the prosecution will use the tired old argument of, "well, even though they designed it to be used legally, just look at how many illegal downloads it enables!" Or, to put it another way, even though Grokster did nothing wrong, the results have come to bear as if they did, and that in itself is enough to prove them guilty. It's a logical fallacy, of course, but that's never stopped the circuit courts before...

Alla | June 27, 2005, 1:13pm | #

Aren't "record company's rights" and "artists rights" to their music the same thing, considering the artist has signed a contract with the record company?

Maybe file sharing will make record companies obsolete eventually, but for now, when artists are under contract, record companies do have claims on the artists' intellectual property. Or is the fact that file sharing is so convenient make property rights not applicable in the case of file sharing?

Eion | June 27, 2005, 1:13pm | #

The problem with download sites, as opposed to peer-to-peer filesharing technology, is the cost of bandwidth. With peer-to-peer technology, the users downloading the material bear the bandwidth costs - thus it is a very attractive distribution medium for artists.

What concerns me about this decision is that the Court has basically imported the inducement provisions of patent law into copyright law. Patent protection is very different from copyright protection - it is intentionally much harder to obtain, much stronger and correspondingly much shorter in term. Just because something would lead to liability under patent law, it doesn't follow at all that it should lead to liability under copyright law.

That said, the decision could have been much worse.

mark | June 27, 2005, 1:16pm | #

Six: The distinction is irrelevant. It's about "rights" period.

Owners of intellectual property -- whether it's the artist who created it or the company that contracted with the artist for rights to distribute it -- deserve protection from thieves.

Eion | June 27, 2005, 1:21pm | #

Copyrighted works aren't like candy bars - "stealing" them doesn't deprive someone else of their benefit. Theft generally requires some intent to deprive someone of the property at issue - so copyright infringement quite simply is not the same thing as theft, and infringers are in general not thieves.

I'd feel a lot worse about any file-sharing activity I participate in if the length of copyright term were vaguely reasonable - which it is not.

Alla | June 27, 2005, 1:29pm | #

It may not be the same as stealing a candy bar, but it is depriving someone from receiving compensation (even if it is excessively high) for their work--which is their property. It would be the equivalent of stealing cable: you're not depriving anyone of the service, but you're evading paying the cable company's fees. If enough people do it, either no one will provide anymore cable service or a new means of service has to be created. I think the music industry needs to do the latter.

Vache Folle | June 27, 2005, 1:29pm | #

Can you be held liable for copyright infringement if you encourage someone ("go for it") to do so but do not actually market a device to facilitate the act?

kevrob | June 27, 2005, 1:35pm | #

Yeah, Eion. And if you sneak into a movie theatre without paying for a ticket, it isn't theft of services as long as you don't take the last empty seat and deprive a potential paying customer from seeing the flick, right? I'm all for fair use, but getting a digital duplicate of the commercially available product without compensating the copyright holder does deprive the owners of property - the profit from the sale or rental of the work.

Perhaps copyright terms should be shorter, or longer, or indefinite. That has nothing to do with whether some fileswappers are just taking what isn't theirs, and not paying for it.

Kevin

rst | June 27, 2005, 1:37pm | #

Owners of intellectual property...deserve protection from thieves.

By what virtue do they deserve such protection? The only thing they "deserve" is that *after* an infringement has occurred, the actual parties who have infringed may be prosecuted. Otherwise, they should protect themselves, or wilt and die like every other business that cannot defend itself against a blackmarket. Caveat purveyor.

Shawn Smith | June 27, 2005, 1:38pm | #

Patent protection ... is intentionally much harder to obtain, much stronger and correspondingly much shorter in term.

Eion, I would phrase that as, "copyright protection is intentionally much easier to obtain, not as strong, and correspondingly much longer in term."

Because the U.S. PTO doesn't have the resources to fully and correctly examine every application that comes in, it has taken the approach of, "grant it if it isn't complete crap, and let the courts sort it out." All kinds of crazy, obvious things have patent protection, especially when it comes to software.

temujin334 | June 27, 2005, 1:41pm | #

eion
"so copyright infringement quite simply is not the same thing as theft, and infringers are in general not thieves."

No, you are wrong. There are a number of factors that add up to copyright infringement including the loss of royalties due to you not paying for the material. You can say "I wouldn't buy the CD anyway" or "I only buy used CDs which artists do not receive royalties on" and make an argument but you cannot say that just because it is an intellectual property, it isn't like stealing tangible items.

"I'd feel a lot worse about any file-sharing activity I participate in if the length of copyright term were vaguely reasonable - which it is not."
I would agree that the Sonny Bono/Mickey Mouse copyright law update did extend it too far however don't try to justify breaking the law because you disagree with it. Just admit you're breaking the law. I'm sure your attitude would be different if it was your work being downloaded.

rst | June 27, 2005, 1:41pm | #

crazy cow - the INDUCE act was written expressly for that purpose, proposed by two legislators who (as one might expect from a thing like legislation) just happened to be getting a healthy reacharound from the RIAA. Thankfully I think it will die, and I hope Hatch and Leahy choke on its tattered remnants like Mama Cass.

SP | June 27, 2005, 1:42pm | #

Only the most amateur of rhetoricians can manage to present "the length of copyright term" as an excuse for copyright infringement.

People who knew absolutely nothing about copyright or intellectual property half a decade ago have spent the subsequent five years soaking up bits and pieces of assorted arguments. Then they try to think, spout a position, and it comes out all muddled and illogical. You see it in countless teen chatroom posts, or in statements like those of Eion above.

tros | June 27, 2005, 1:54pm | #

I download pirated songs. If some musician wants to sell their work to one of these sleazy companies, then fuck em. I'm a musician, and nobody pays me for it. Boo fucking hoo.

Incidentally, I did buy this guy's new album. He's local to Boston, and you can't find his shit anywhere else. He would have an orgasm if people were sending his music to all their friends all over the country.

temujin334 | June 27, 2005, 1:57pm | #

I'm a musician, and nobody pays me for it.

Don't penalize other artist just because your music sucks.

:)

Cyrano | June 27, 2005, 2:03pm | #

So, the band I saw Saturday night who encouraged the audience to download its album from the eDonkey network is screwed. The network is providing a way for people to trade legal files, but it might be used to violate copyright.

Do the companies that make steak knives take "reasonable" steps to make sure the knives aren't used for illegal stabbings? How the hell would they do that?

You know, this free Hit and Run board could be used by criminals to exchange information. We had better take some reasonable steps before it's shut down.

isildur | June 27, 2005, 2:06pm | #

Today's impotent rage brought to you by the Supreme Court of the United States.

Just like yesterday's, and the day before's, and the day before that's...

temujin334 | June 27, 2005, 2:11pm | #

Cyrano

I don't think you are finding too many (if any) people agreeing with the ruling. The issue most people (including me) have a problem with are the people saying that downloading copyrighted material isn't stealing. The p2p networks should be allowed to operate but people who use it for copyrighted works (which the artist don't wish distributed) are stealing music.

dead_elvis | June 27, 2005, 2:18pm | #

And in other tech news, I noticed on Slashdot:

"The U.S. Supreme Court has agreed with the Federal Communications Commission that cable Internet service is an 'information service' rather than a 'telecommuncation service.' This means that cable companies don't have to make their infrastrcture open for competing ISPs to use. This is in distinction to the case of telephone companies and long-distance service, for example."

Alla | June 27, 2005, 2:19pm | #

Cyrano, if the band you saw is ok with the downloading (and there's no record company with rights to their songs), I don't think downloading their music would be illegal. The ruling doesn't say that artists can't use the Internet to promote their music, it just says people can't pirate and exchange an unobliging artist's songs.

kevrob | June 27, 2005, 2:21pm | #

What could become important is what sort of burden will be placed on the fileshating sites. Will a warning and disclaimer do? "Our acceptable use policy forbids using this site in furtherance of violation of copyright. Such activity is also subject to criminal and civil penalties in the U.S.A. and other jusrisdictions. So don't do it." Or will the operators have an obligation to monitor users' search activity, and bust those who seem to be looking for unauthorized free stuff?

Kevin

Eric the .5b | June 27, 2005, 2:22pm | #

Common sense and memory of things said after the Napster shutdown tells me that, yes, Grokster was started up primarily to share copyrighted files illegally. I don't think there actually is anything about Grokster or most of the other file-sharing programs that makes illegal sharing any easier than regular sharing.

I think P2P file-sharing is mostly used to trade copyrighted files for the simple reason that those files are the ones people most want to share. For every public domain track, garage band promotion, or other song that would be perfectly legal to share, there are eight million copies of top 40 songs.

I don't think that's a good enough reason to punish the company.

Rhywun | June 27, 2005, 2:22pm | #

people who use it for copyrighted works (which the artist don't wish distributed) are stealing music

I agree, and I agree with whoever said that the music companies need to come up with another model. Obviously, people are stealing because they feel the product isn't worth what the companies are charging for it. But hasn't iTunes and the like already proven that people WILL pay a more reasonable price?

Alla | June 27, 2005, 2:32pm | #

The bad thing about this decision is no one's sure what the liability is for file sharing companies: they are now subject to the arbitrary will of the government. And as we saw with the Raich and Kelo decisions, courts are quite talented at interpreting laws and rulings to amazing extents.

Rhywun,
iTunes has developed a legal system, but it's not that great, so most people don't see an incentive to use the paid product as opposed to a free one. Maybe the solution would actually be the strengthening of intellectual property laws to deter people from free downloading...I'm not sure.

zeroentitlement | June 27, 2005, 2:35pm | #

Tros' response follows the pattern of most pro-piracy freeloaders: I'm so cool that I steal the music of largely unknown and non-mainstream artists, so therefore it's OK.

F*ck that sh*t. Artists deserve to get paid for their work. The "cool" ones deserve to get paid more, not less. The idea that you somehow deserve to take someone's work without paying, just because you're "cool," is communism.

Dynamist | June 27, 2005, 2:38pm | #

rst: If a security service on patrol noticed someone holding a knife to my throat, I would want the officers to prevent the harm rather than waiting for my survivors to litigate for redress.

But then, the officer would detain the wielder of the knife, not the manufacturer. I'm more for punishing the actor that causes harm. If we can punish intent in the name of prevention, it is the intent of the wielder that must be assessed, not the potential harmfulness of the tool, nor the intent of the manufacturer.

Eion | June 27, 2005, 2:44pm | #

SP:

Thank-you for your kind words, although I'm not sure how 'theft requires intent to deprive' + 'copyright infringement does not deprive' -> 'copyright infringement is not theft' is muddled or illogical. Maybe you'd care to enlighten me?

While length of copyright term is not a legal defence to infringement, it makes the act 'feel' less bad. I'm not a "rhetoritician"; I was merely trying to put across the point that copyright infringement is not theft as it is normally understood. Our economic system of copyright calls for a delicate balancing act, and currently our system is out of balance - due to rent-seeking by rightholder groups in part, and in part because of international harmonization of copyright law which tends to ratchet levels of protection up.

"I'm all for fair use, but getting a digital duplicate of the commercially available product without compensating the copyright holder does deprive the owners of property - the profit from the sale or rental of the work."
Sorry to be pedantic, but the copyright holder does not have a right to profit except to the extent that their exclusive rights (distribution etc.) allow them to. If they make bad music and which no-one wants to buy at a profit-making price, their rights have not been violated.
Your theatre analogy would be apt if the theatre had an infinite number of seats - in which case, one person more or less would not much matter (and I would hope that the screen was very big).

"but you cannot say that just because it is an intellectual property, it isn't like stealing tangible items."
It isn't. That's why it's called infringement - because you have infringed upon a rightholder's right to do something - rather than theft or stealing. If I steal something from you, you do not have it any more. Infringement and stealing are different things.

I have personally bought a large amount of music that I would not otherwise have bought had I not downloaded it. Was it illegal to do so? Most likely. Have artists benefitted from my use of peer-to-peer technologies in violation of their exclusive rights? Absolutely.

My attitude might be different if it was my work being downloaded, but I'm really not sure. I'm not in a really creative field. But I like to think that I'd be proud that my work was being disseminated and enjoyed.

SP | June 27, 2005, 3:00pm | #

"SP: Thank-you for your kind words, although I'm not sure how 'theft requires intent to deprive' + 'copyright infringement does not deprive' -> 'copyright infringement is not theft' is muddled or illogical. Maybe you'd care to enlighten me?

My words weren't kind, and they weren't intended to be.

The argument you're referencing here ("deprive," etc.) isn't the argument I referenced in my post.

ha | June 27, 2005, 3:05pm | #

i guarantee that most folks borrow books, newspapers, magazines, etc, to read, but do folks consider that stealing? just curious. fast forwarding through commercials? watching someone elses lapdance?

mark | June 27, 2005, 3:10pm | #

Obviously, people are stealing because they feel the product isn't worth what the companies are charging for it.

If you don't think it's worth the price being charged, you're certinly entitled not to consume the product. You're not entitled to steal it. Period.

Lowdog | June 27, 2005, 3:13pm | #

What if I download an album that I used to own, but that some assholes stole when they stole my car?

This is a tricky area. I'm a dj, myself, so technically, every time I make money djing an underground event, I'm screwing each producer whose track I lay down out of a royalty, since I do not contribute to ASCAP (or BMI, or whichever collective they should get royalties from). But I would love to have people p2p my stuff all over the internet. And if I ever start producing my own music, I'll probably use the internet to distribute it and not sign to any label.

Anyway, very tricky. Basically, the record companies need to change the way they do business. Too bad they weren't smart enough to see the technology coming and use it for their own profit instead of getting the government involved because they were too slow...

Alla | June 27, 2005, 3:13pm | #

I think the issue with p2p file sharing is more complicated than borrowing a book: if you borrow a book, it's author/publisher have already been paid, and the book is your property, so you can share the phsyical book (not its ideas) all you want.

mark | June 27, 2005, 3:17pm | #

i guarantee that most folks borrow books, newspapers, magazines, etc, to read, but do folks consider that stealing?

If your definition of "borrowing" is to enable hundreds or thousands of people to print exact copies of the book, then yes -- it's stealing.

David | June 27, 2005, 3:18pm | #

Alla's right, You can read a borrowed book but you can't photocopy the pages from a book without permission from the publisher.

The Real Bill | June 27, 2005, 3:18pm | #

Copyright is both just and unjust. It's just for newer works--works that aren't older than the average length of a patent. Art is important, but what would you rather have, a cure for your cancer or your favorite CD? It's pretty obvious to me that science and engineering are more important than art, therefore, the creations of science and engineering should have at least as much protection as artistic creations. Unfortunately they don't. IMHO, downloading older recordings and movies is moral, but downloading newer works is not.

kevrob | June 27, 2005, 3:21pm | #

If they make bad music and which no-one wants to buy at a profit-making price, their rights have not been violated. - Eion

Downloaders grabbing music they don't like strikes me as counterintuitive. Perhaps they listen once to a tune, dislike it, and delete it from their storage media. In any case, if the authors of the work don't authorize a free preview, that's still illegitimate. I can't imagine why they would keep such a file, unless it is so they can trade it to those of different tastes for tunes they like better.

As for reading or listening to authorized copies that one borrows, that isn't considered stealing. Other countries do a few things differently, though. Libraries in the UK pay authors under something called Public Lending Right. Every time a book is borrowed, a micropayment in lieu of royalty is made. A regime like that could compensate creators if you were allowed to legally download a file that becomes unreadable after a date certain.

As noted above, all sorts of new models should be tried, whether freeware, shareware, rental or purchase. I really don't care if the record labels or movie studios disappear or morph into something else, as long as the artists receive a fair price for their work.

Kevin

ha | June 27, 2005, 3:21pm | #

not sure what you mean Alla, if you share the physical book, is it not read the book (is that what you mean my ideas?). is the publisher still not loosing $ from folks borrowing books (or mags and newspapers). what if the book is digitized and downloaded over p2p, is that the same thing as borrowing it? only reason I bring it up is there are a lot of folks calling others theives and such, when in my book, if you are a purist, borrowing a book is the same thing.

Shem | June 27, 2005, 3:24pm | #

It's difficult to feel bad for an industry that had to pay millions as a result of a lawsuit that found that they had spent the last 25 years conspiring to keep the prices of CDs constantly rising, thereby at least partially creating the market for P2P software. Some people might call their recent troubles with Wal-Mart and all the -sters karmic realignment.

ha | June 27, 2005, 3:26pm | #

maybe i get it now, as long as you duplicate the item, it's stealing, but since a book is just transfered, it's not considered stealing. digitizing the book would be duplicating it and considered stealing. still seems like the authors/publishers/whatever are getting screwed, but whatever, beats diggin ditches I guess.

Alla | June 27, 2005, 3:33pm | #

Ha, you make an interesting point about not distinguishing between borrowing and stealing. I think your conclusion that duplicating is when it becomes stealing is correct.

Out of curiousity, are you trying to point out that all borrowing is stealing? So music sharing is ok? Or that all borrowing should be illegal?

Fairhaven | June 27, 2005, 3:36pm | #

OK, so I'm a fan of a popular artist and I really want one of his/her records. For the sake of argument, let's use Gillespie's example: Bob Dylan and "Blood on the Tracks."

Consider the following scenarios:

1) Via Grokster, I download all 10 tracks. (Yes, even "Lily, Rosemary and the Jack of Hearts." Sorry Nick.

2) I walk down the street to a garage sale where my neighbor is selling old albums and CDs for 25 cents each. I give him two bits for the used store-bought CD.

By some accounts here, in scenario No. 1 I'm a thief who is stealing music.

What am I in scenario No. 2? What's the difference?

Ignorant Law Student | June 27, 2005, 3:45pm | #

I'm not going to wade too deeply into convincing people that media piracy is theft - but, I have to comment on the assumption that this case is all about protecting the MPAA and RIAA against new technologies. It's far less than clear that the Justices would say anything like that. What they said was, if someone can prove you have a bad intent, you're in trouble.

Reading the Grokster case itself, the Justices made repeated reference to internal Grokster and StreamCast documents that basically said, "if Napster gets sued out of existence, we're going to provide the technology to let people continue illegally downloading." In other words, there's enough evidence to charge them with accessory-like conduct, such as you would to an electronics store that sells racks of VCRs to a person the store knows is a bootlegger.

Swill | June 27, 2005, 3:50pm | #

So I'm curious. Say I'm not Brian Eno, not in Heart, not a member of a band that has the means, motive and opportunity to get music freely disseminated on a web-site. Say I just like the fact that I can put my song or my movie on a P2P network and anybody that wants it can have it. Just because other people are using this tool to do things that may be illegal, I should be enjoined?

I own (in album, tape or CD form) the "rights" to most of the music I downloaded on Napster and KaZAa. When my album warps, my tape breaks, and my "lifetime" CD starts skipping after 10 years, what rights do I have? What rights do I have given that I paid the artist and the record company years ago for their intellectual property? I don't really give a shit if the RIAA or MPAA are unhappy with the way I exercise my franchise, I am not really buying the medium of conveyance, I am buying the rights to the work. If they don’t understand fair use that is their problem.

I have no qualms whatsoever with the notion that it is theft to download a song that I do not have the rights to. I categorically agree. Artists own the rights to their music just like Pfizer owns the rights to Vi@gra and all the land in New London Connecticut it can grab. But in this game, the software is only a tool, with perfectly legal applications. It is not up to a business to bear the burden for the illegal use of their product.

kevrob | June 27, 2005, 3:59pm | #

Fairhaven:

In your garage sale alternative, the thief is the guy who ripped his vinyl tracks to CD, then sold you the wax platters.

I used to religiously audiotape my LPs and play the tapes, while storing the fragile sides. If my tape deck or portable cassette player ate a tape, I could make another copy. Friends would get annoyed with me when I wouldn't lend them an album when they expressed a desire to tape it. I had one pal who spent enormous cash on a decent component system, while I made do with a $100 all-in-one piece of junk. He still wanted to tape some of my records. Sheesh!

Kevin

deron | June 27, 2005, 4:06pm | #

Full disclosure, I used Napster a few times, and found that the downloads were of unreliable quality, slowed my computer enormously, and just generally inconvenient. I realize it's stealing, but... I've also been known to sample the bulk candy in the grocery store now and then. I've also broken the speed limit. I've jumped turnstiles in the subway. I've smoked real Cuban cigars. I've sampled marijuana. I drank before I was 21. Apparently, I'm no angel. I've broke countless laws that are generally ignored, and I place the file sharing in the same category as these laws.

Right or wrong the industry needs to evolve. As a consumer this seems like a little bit of disobedience that will force the change. The outcome may kill the distribution industry, too bad. The distributors may find a way of stopping sharing. That's fine as well. Either way they need to change. Music artists need to get used to playing live.

zach | June 27, 2005, 4:10pm | #

Music artists need to get used to playing live.

i agree entirely. this is why, as a musician, i see the "impending disaster" posed by file-sharing to be more or less a good thing.

that said, people need to get used to going out (in cities other than new york and LA).

Stretch | June 27, 2005, 4:43pm | #

The bottom line is is the right holder doesn't want you to take their material for free, then you are stealing it if you do, period. The industry has obviously been outpaced by the technology, and it will have to change. But even if illegally downloading songs will lead you to buy a legal copy, that doesn't change the fact that you stole it in the first place. Eventually companies will come to the conclusion that file-sharing can be used in their favor, but not today.

Even if an individual artist is thrilled that a million people have downloaded his songs, that doesn't mean that another artist should also be thrilled. If you create something, then it's your choice if you want to sell it, give it away or destroy it. It's your choice, not Internet Joe's.

And while I certainly won't lose any sleep over the big studios losing money (hey, they need to keep up with the times), plenty of smaller studios really do need you to actually buy their products. Not surprisingly, it is usually the smaller studios who are experimenting with the technology, simply because they have no other choice.

Rhywun | June 27, 2005, 4:54pm | #

What am I in scenario No. 2? What's the difference?

The difference is that in scenario 1 you created another copy of the material and did not pay for it. Think of it as having your own CD-press. If you pressed out a thousand copies and sold them on the internet, wouldn't you consider that stealing? In scenario 2 there is only one copy being transferred.

Lowdog | June 27, 2005, 4:56pm | #

Swill - I was making the same observation about fair use when I asked if it was ok for me to dl an album that I used to own, but that had been stolen by car thieves (acutally, it was multiple cd's that were stolen).

SP | June 27, 2005, 5:17pm | #

"only reason I bring it up is there are a lot of folks calling others theives and such, when in my book, if you are a purist, borrowing a book is the same thing."

It's crap like this that has made this debate so intensely irritating over the years. I know that not everyone is a lawyer -- I'm certainly not -- but it's astounding the number of people who venture into these arguments and present some long-beaten premise as if it's a novel angle on the whole deal.

The "borrowing" thing you're talking about is not relevant whatsoever to copyright, which is about rights of DUPLICATION. It's very simple. There's nothing to get yourself all worked up about.

Google "first sale doctrine" if you want the legalese.

Eion | June 27, 2005, 5:27pm | #

"My words weren't kind, and they weren't intended to be."Look up there! It's something flying waaaaay over your head.

The argument you're referencing here ("deprive," etc.) isn't the argument I referenced in my post."
I referenced your other argument later.
Speaking of which, I see that you haven't responded to my further points.

Basically, my objection is this - doing something that the government has granted someone else the exclusive right to do is not theft. It's infringement of someone's rights.

"Downloaders grabbing music they don't like strikes me as counterintuitive"
What about downloaders grabbing songs that they might want to listen to a couple of times and then discard? To clarify - people might download music that they think is okay but not good enough to justify a $16 price tag. That was what I meant.

iTunes is a good solution to this, but it has two problems. First the DRM ties you to the Apple system somewhat, and makes the music harder to use than the illegal alternative. Second, and more important for me, is the horrible quality of iTunes tracks.

"What they said was, if someone can prove you have a bad intent, you're in trouble."
Except that under their formulation, intent is not necessarily required - which I have a problem with.

"I have no qualms whatsoever with the notion that it is theft to download a song that I do not have the rights to. I categorically agree. Artists own the rights to their music just like Pfizer owns the rights to Vi@gra and all the land in New London Connecticut it can grab. But in this game, the software is only a tool, with perfectly legal applications. It is not up to a business to bear the burden for the illegal use of their product."
Well said (except for the use of the word theft ;?)).

No-one here is arguing that downloading copyrighted works that you do not have a licence for is not infringement (under US law). The question is whether people providing a tool that could be used to infringe should be liable as infringers - and I would argue that while going after the individual file-sharers is not the most effective method of copyright enforcement, criminalizing mere tools rather than the improper use of those tools is not appropriate.

Peter Tisserand | June 27, 2005, 5:28pm | #

What's Missing Here?

A lot of these file sharing companies install spyware and adware out the wazoo. It's how they make money.

Apparently the puzzle pieces everyone seems to be missing is this item about Microsoft's efforts to create it's own file sharing protocol while discrediting other protocols (according to columnist John Dvorak) and the Record Companies warming up to P2P.

With the help of the Kelo Decision and new rules on what constitute interstate commerce, what's to keep Eminent Domain from shifting Grokster tech to a "responsible" company that can generate more tax revenue? Already Services like KaZaa generate cash or they wouldn't be fighting so hard to stay in business.

Seems like our government is overcompensating for idiot companies.

Given this list by G.W. I'd say it's time for the wimmin to circle the wagons:

"But America will always stand firm for the non-negotiable demands of human dignity: the rule of law; limits on the power of the state; respect for women; private property; free speech; equal justice; and religious tolerance.
(From "The State of the Union address")

metalgrid | June 27, 2005, 5:28pm | #

It's still legal to make a copy of a musical CD for yourself, if you've bought the original. You can then let a friend borrow your original copy, and he can make a copy of that for himself, and then return the original to you. You can do that as many times as you like to all your friends, and you are still within the bounds of the law.

Having said that, after all is said and done, you still have the original works, all your friends have copies. The whole grokster issue just escalates the end result to a greater degree. My question then is at what degree of dissemination does it become illegal with regards to the end result, or is the issue entirely about the means? For instance, can I leave a file share on my computer wide open with my entirely legal music collection on it, and let everyone borrow the music and make copies of it?

Eion | June 27, 2005, 5:32pm | #

"The "borrowing" thing you're talking about is not relevant whatsoever to copyright"
Actually, that's wrong. The first sale doctrine is an exception to what would otherwise be infringement under § 106(3) (the distribution right). Despite the name, copyright isn't just about the duplication right.
First Sale Doctrine as codified by the US Copyright Act

Eion | June 27, 2005, 5:34pm | #

"It's still legal to make a copy of a musical CD for yourself, if you've bought the original."
Not in the United States it isn't.

SP | June 27, 2005, 5:45pm | #

I'd written: "My words weren't kind, and they weren't intended to be."

Eion wrote: "Look up there! It's something flying waaaaay over your head."

Talk about a tin ear for sarcasm.

Eion | June 27, 2005, 5:47pm | #

"Talk about a tin ear for sarcasm."
Well, I see you've wandered far away from the real arguments. That's probably a good place for you to be.

Dave | June 27, 2005, 5:50pm | #

Mark:

Thief and a jackass, you can call me that. But I will call you a sucker for paying a couple hundred dollars for a piece of software that can be gotten for free because someone who owns it was nice enough to share. You are also a sucker for paying $17 for a CD when you only want one song. Get mad about it why don't ya? Mark have you been hurt by downloaders in the past?

Jennifer | June 27, 2005, 5:58pm | #

I don't download things, mainly because I don't know how to, but how is it any different from the way I, as an impoverished teenager in the 80s, taped songs off the radio? I even remember switching back and forth between the two main "Top Forty" stations, waiting for a particular song to start so I could press "record."

I know it would have been illegal for me to SELL copies of my homemade tapes, but so long as I made no money from it, what I did was legal so far as I know. How is downloading different?

Rhywun | June 27, 2005, 6:10pm | #

Jennifer,

I think the record companies got a kickback from the sale of each cassette tape. Otherwise, it was illegal. Same as for video cassette tapes.

grylliade | June 27, 2005, 6:22pm | #

But I will call you a sucker for paying a couple hundred dollars for a piece of software that can be gotten for free because someone who owns it was nice enough to share. You are also a sucker for paying $17 for a CD when you only want one song.

Oh, come off it. I've downloaded illegal software and songs in the past, but I'd much rather pay for it. I can't afford to right now, which doesn't justify what I've done, but I chose to do so anyways.

It's moronic, though, to tell people that they're suckers for paying for content. If they don't pay for content, how do they expect to get more content? Open source is, with a few notable exceptions, not worth it. Maybe it will become more so over time, but right now most open-source software is free only if your free time is valueless. Most good content will only be provided in a market where the makers are compensated for it.

I think the record companies got a kickback from the sale of each cassette tape.

I don't think they did. It was part of the deal for allowing DATs onto the market (the digital cassette tapes — look how much of a danger they posed!), but regular analog cassette tapes were never, to my knowledge, taxed to compensate copyright holders in the US.

Eion | June 27, 2005, 6:33pm | #

Recording from the radio on to tape is an infringement but under Sony v. Universal City Studios (the Betamax case) is arguably fair use.

"regular analog cassette tapes were never, to my knowledge, taxed to compensate copyright holders in the US."
Not to my knowledge either. The compulsory licensing scheme only covered digital recordings (courts have held that it doesn't include MP3s etc. IIRC but I'd need to look it up to be sure) and was set up by something called the Audio Home Recording Act.

I'd argue that one of the reasons that digital cassette tapes never took off was the AHRA - it contained fairly onerous tax provisions on the devices and media and also mandated the use of copy protection schemes (also, DAT tape and the like aren't all that reliable, and I believe that the devices would have been extremely expensive even without the extra tax).

Dogzilla | June 27, 2005, 7:09pm | #

I don't like this ruling primarily because if record companies and movie studios start winning all their legal challenges, they will dumb down the technology to suit their purposes.

The morality of file sharing is a whole other interesting debate. My friend the magic rat says if you weren't going to buy the CD anyway, it's not stealing.

Nova Lounge | June 27, 2005, 7:34pm | #

So.. does this mean that Micro$oft is fair game for their infringement inducing file 'copy/paste' technology?

KillTheNeocons | June 27, 2005, 8:49pm | #

And so america continues it's decline.
Wouldn't want to harness the power of the P2P networks becasue then pople might actualy experience freedom, and free people are hard to control. Much easier to stifle this freedom and turn your citzens into mindless sheep.
Next up on the Neocon agenda: Thinking for yourself is against the law, and anyone who reads something on the banned-books list is guilty of a crime.
Woe is you for you are so bold as to actualy refuse to buy the drivvel that hollywood and the RIAA churns out becasue then you're a "Liberal" and that's a dirty word in america right now.

Jadagul | June 27, 2005, 10:07pm | #

I think most of you are missing an important part of the ruling. Grokster wouldn't be liable because it made it possible to infringe copyright, but because it actively encouraged infringement. From the first sentence of the linked article:

Distributors of popular software for sharing music and videos online can be sued if they encourage their users to illegally swap copyrighted works [emphasis mine].

The Supreme Court ruled that Grokster "clearly voiced the objective that recipients use it to download copyrighted works, and...took active steps to encourage infringement," which is more than just making it possible.

So the correct analogue is if a man comes into my (hypothetical) gun shop, and I tell him "Hey, check out this gun. It's really great for holdups--you can conceal it to hide it from the police, and it looks scary enough that anyone you pull it on will be too scared to resist. You can score lots of cash from people with it!" In that case, I think I'm pretty clearly partly responsible for his use of the gun in a mugging.

Captian Awesome | June 27, 2005, 10:48pm | #

Well a week or so ago I sent an email to our senator about the broadcast flag (this seems like as good as any thread to post). And here's the response I just recieved


Thank you for writing to me about the digital broadcast
flag. I appreciate hearing from you.

I feel strongly that we must prevent the theft of copyrighted
works, and that includes digital television (DTV) programming.
As we move forward in the digital age, it is increasingly easy for
unauthorized copies of copyrighted works to be made and illegally
distributed. Over-the-air digital content is the easiest to pirate.

As we contemplate the use of new technologies to protect
copyrighted works, we must pay careful attention to ensure that a
balance is struck between competitive protections and individual
consumer interests. It is important to allow for the continued fair
use of copyrighted material, even while we seek to stop
unauthorized reproductions from being illegally distributed outside
the home and over the Internet.

Again, thank you for writing. Please know that as the
Senate considers legislation of the broadcast flag, I will be sure to
keep your views in mind. If you should have any questions, please
feel free to contact my Washington, DC staff at [phone].

kevrob | June 28, 2005, 4:23am | #

Jennifer:

Taping off the radio to an analog recorder would not have yielded a sufficiently "clean" copy of the tune, if illegal commercial exploitation was the taper's plan. If you were recording from a Top-40 stick I'd expect the DJ was talking on the intro and yakking some more as the last song in the block faded out. If the station was AM you had to deal with static, and only a few stations broadcast in AM-stereo. Compared to a digital file, taping off the radio was like copying a TV show by aiming a camcorder at the screen.

I will confess that I used to tape songs using a mono FM radio, with one end of a patch cord plugged into the earphone jack and the other into the mic jack of a mono cassette recorder, with a toggle switch I bought at Radio Shack connected to the remote jack. I'd leave the recorder's controls locked, with another fine Tandy product, a cheap 3" speaker, hooked up to its earphone jack. That way I could listen to the radio while waiting to record, and a flick of the toggle would start or stop the machine just after the DJ stopped blabbing or the song ended.

I plead 13ness as my only excuse, your worships.

Given my limited budget for C-60s and C-90s at the time, I would tape over stuff frequently, so I wasn't keeping too many permanent copies. I was probably compliant with the Betamax case, even though it was well in the future.

Kevin

chicks | July 2, 2005, 8:27am | #

What a bunch of asses most of you are. Argueing wether or not it is right, well you know..they suppress everything to us..and to have to pay 10 -30 for a single cd..is piracy in itself..what ever happened to enjoying making music loving others who enjoy it. I say if they want to get rich and leach from the world then you get ripped. sorry...the gov and music companies, and especially the musicians who bitch can just fuck off. I will continue to download whatever the fuck i want if it is here. You dont like it..shut down the net assholes.