“The Supreme Court has given the entertainment cartel and emerging broadband duopoly just what they wanted. You, and innovation, lost,” writes media analyst Dan Gillmor at his new blog hangout, Bayosphere.
- “The high court said that Grokster and other file-sharing companies can be sued if their products are designed for copyright infringement and don’t have safeguards to protect copyrighted material.” [More analysis follows.]
- “[T]he court also came down on the wrong side in the so-called “Brand X” matter, saying cable Internet access providers companies don’t have to provide access to third party ISPs. They own the cable, so they get to decide what data gets sent, in what order. Given that there are only two ‘broadband’ providers in most communities — if that many — this is an invitation to a media consolidation that makes the current one look pale. …”
Gillmor charges us up:
If you care, fight back. Call, and especially write, your member of the U.S. House and U.S. senators. Tell them that the law is now grossly out of balance in the hands of the entertainment cartel and data duopoly. They won’t pay much attention if you’re the only one who calls, but they may begin to wake up if enough people care.
I will call. I will also continue to use BitTorrent, my current favorite file-sharing software, for finding and distributing content that doesn’t come from the cartel and its minions. I will keep recommending it.
What will you do? (Emphases mine.)
Gillmor also provides these links:
Lots of links
- How Appealing
- Copyfight
- LA Times (Hollywood’s hometown cheering section)
- Did I mention BitTorrent?
And, you can comment at his <a href="“>blog.
This decision actually scares the poop outta me. It means that, most likely, those of us who code for open source projects will either have to abandon our software or implement DRM (Digital Rights Management) to the satisfaction of major media producers. We will be liable if we knew piracy was going to be a result, and didn’t take “reasonable actions.”
Without fail, all it takes is a couple of idiot juries to think that DRM is “reasonable” and then all media production AND distribution will be in one nice cartel.
This could easily threaten such products as DIVX (since you could pirate DVD content with it) and shutdown BitTorrent. Sad, because my first exposure to these technologies came about because of Red vs. Blue movies.
Actually, according to Slashdot (not usually a good news source, I know…), this judgement is linked to the promotion of the device:
Emphasis mine. It seems that the judgement’s purpose is to create liability for those who promote a device’s potential for copyright infringement, regardless of other uses of the device. Basically, it provides an exception to the “substantial non-infringing use” clause if the infringing use is promoted as the primary use by the device’s creators.
So if the XviD people (a better example than DIVX) distribute their codec and say “Use this to rip your favourite DVDs and share them online!” they’re liable, but if they say “A high-efficiency codec for encoding all kinds of video”, they’re good. Likewise, Bram Cohen doesn’t promote BitTorrent as a “file-sharing” program, but as a protocol analogous to FTP or HTTP. In these cases, I believe the “substantial non-infringing use” clause takes over.
Heh, Slashdot. The words “…wretched hive of scum and villany…” come to mind.
True. The decision didn’t completely gut Sony. However, the Betamax wouldn’t have withstood the new test. Sony EXPLICITLY described how to record shows (there were virtually no TV shows that could be recorded legally at the time, even for “time shifting”). That was a selling point for the Betamax “Record your favorite shows and watch them again and again.” That isn’t covered by fair use.
Now, it could EASILY be argued that since much of the hype around, say, Xvid is that it doesn’t nag you with DRM, it could easily be found that Xvid promots uses contrary to digital rights. It might be a strech now, but when DRM is more ubiquitous, creating software that 1)doesn’t adhere to DRM, and 2)doesn’t say that they TRY to comply with industry wishes on DRM, that software maker could be construed as using DRM non-compliance as a selling point. And if a jury buys that argument, that’s all that matters.
No, it’s not, and it never has been. Even after Sony, that was considered to be illegal activity, and it still is. A lot of people, when criticizing online TV episode file-swapping, don’t seem to understand this. This is an excellent example of copyright law not keeping up with technological advances – the advances have made much of the rationale behind the law obsolete. Unfortunately, sellouts like Biden and Hatch will throw their careers down the toilet if that’s what it takes to prevent that from changing.
This, unlike Eldred V Ashcroft, is a reasonable decision under the letter of the law. The law needs to be changed, but the decision’s still reasonable.
No, it couldn’t be argued. That is not the same as encouraging copyright violation. It’s the matter of active versus passive. In this case, the product was actively advertised as being useable to violate copyright. If it can be used to violate copyright, but this use is not mentioned in the advertisement, then “substantial non-infringing use” takes over. In XviD’s case, they aren’t saying “Use this to pirate copyrighted material!”, so they’re safe.
Yes, but Sony explained how to copy TV shows in the manual, and one of Universal’s big arguments was how the MANUAL for the Betamax said you could watch your shows “over and over again.” That was inciting illegal use. A selling point in ads was to watch your shows “again and again.” A company doing that today could be found liable.
Untrue. A pointed lack of DRM, if advertised, could be used in conjunction with other circumstantial evidence to point to an effort to market the technology contrary to legitimite use. Imagine if ALL copying tech stopped you from copying a DVD. Then something like… DVD X Copy came out, that let you copy DVDs. Which, I may remind you, is LEGAL for home use.
Too bad, because DVD X Copy was sued and was forced give up it’s software because it COULD be used for illegal purposes, and that encouraging copying of DVDs was inducement of an illegal act (violation of the DMCA on DRM schemes and circumvention).
Even though it’s LEGAL to own a copy of your DVD, it’s not legal to write the SOFTWARE to copy it. Nice huh?
Doing some research on the case, it’s not quite that cut and dried. Apparently, most of the judges were initially in favour of Sony being liable for contributory infringement due to those very things you mention. The case was apparently decided in Sony’s favour because the majority opinion, did not resolve the time-shifting/repeated-watching question. The court decided that that was irrelevant to the case at hand, and that Sony would not be liable unless Universal could prove that there was harm caused by this feature – IE, that it was actively being used! They did conclude that time-shifting was fair use, but left the other question open. Thus, this does not seem to be a valid argument – Sony may or may not have been liable under this new judgement, depending on how the court perceived that advertisement. However, the important point of Sony was the “noninfringing use” clause. This decision is merely adding an exception to that, for cases where the producer explicitly advertises and promotes the infringing use, which can also actually be proven to be taking place.
Here’s the problem with your argument. That is not possible. Advertising DRM or the the lack thereof is merely advertising a feature of the device, it is not promotion of infringing use. Such a promotion has to be, as it was in the case of Grokster, active rather than passive.
Also, your DVD X Copy example is totally irrelevant. That case was decided on the basis of the DMCA, which is a blatantly unconstitutional law.
I stand corrected on the Sony decision. I could have sworn they held Sony couldn’t be liable for the issue of repeated watching.
As for the DVD X Copy, I feel that it is relevant. They were in breach of the DMCA over very, very flimsy grounds. However, that didn’t stop them from being litigated to death.
The same may just happen to plenty of other technologies now that the RIAA, MPAA, et al are allowed to bring suit against any product that could be used for piracy. They might not win, but smaller producers and programmers will be chilled, because they can’t afford pricey lawyers, and the EFF has only so many to go around.
precisely because it’s decentralized. There’s no central server to attack, no company behind it. Just Bram Cohen, who released the format out into the wild. To his credit, he doesn’t use BitTorrent to get illegal content, at least in part because then it could be used as a cudgel against the format.
Large institutions like companies and universities might try to shut BitTorrent down by closing off the ports it uses, and maybe even ISPs will eventually try the same thing; but the thing about projects like BitTorrent is, once the pigeon poop is out it’s pretty hard to get it back into the pigeon. Just as an example, I can imagine someone implementing a P2P system and wrapping it in HTTP, making it indistinguishable from other port 80 traffic. Heck, if I was ambitious I might write one that uses stegonographic techniques to hide content in images, or disguise it so it looks indistinguishable from email spam. It would be slower than sending raw bits, but it would also be harder to shut down.
My opinion; as we say, your mileage may vary.
Take my BT network for example.
First, I rely on decentralized trackers from the Azureus tracker database. That means even if a tracker host is down, I can still pull peer and seed data.
Second. I have 15 different ports open to BT traffic. BitTorrent software doesn’t require a specific port. Also, even if you don’t have a port available, you can use uPnP to bind to another IP’s port.
And, of course, BitTorrent should be safe. Hell, Blizzard uses it to prop patches to World of Warcraft. I hate it though, because every damn patch day, I have 5 people in our neighborhood wireless network begging me to open up BitTorrent ports for them to DL the patch. Blizzard doesn’t have uPnP enabled for their downloader, so I have to assign Blizzard’s set ports round robin to each of the kids who need port access.
and there’s plenty of legitimate use in it. For instance, just last week I was despairing of getting a copy of the latest version of Knoppix that I had promised one of my son’s friends. It’s free-as-in-speech freely available, but since it’s an ISO that fills an overstuffed CD (something like 700 MB), it takes a while to download.
Enter BitTorrent, which was able to cut that down to something like 45 minutes.
I dare say that something like BitTorrent could be used in the future for applications like groupware or source control. Imagine a large collaborative group — I’m thinking of something like the Linux kernel developers, or maybe even the campaign team for a Senate seat — using a program that incorporates BitTorrent-esque technology that uploads as it downloads to keep calendars and documents in sync, allowing people to share schedules and keep in touch through instant messaging. Or imagine an operating system update facility — something like Gentoo’s portage, FreeBSD’s ports system or even a Windows update service — that allows you to get updates for software you’ve legitimately bought, as soon as it’s available and as fast as the network can get it to you.
. . . that is, if court decisions don’t kill the technology off and chill innovation for fear of being sued into oblivion.
Bah, I hate Knoppix. It never seems to address anything I need correctly.
Get the Ubuntu live CD. Or if you like KDE, get Kubuntu. I carry Mepis, Knoppix, Ubuntu, and Kubuntu live CDs in my laptop bag. I nearly always grab Ubuntu to show of the power of *nix.
The point is accessability, not distro wars. Stay on target. 🙂
I have yet to try Ubuntu. I just use Knoppix because that’s what I’m used to. I have a friend who’s a big fan of Ubuntu, though, so I might give it a shot one of these days.
Heh. Talk about wars. I was a sysadmin on a VAX system about a decade ago. The other college across the state we worked with had a different system (I can’t recall it off hand). There were nearly fistfights at times over things like BSD.
But hey, whatever makes you happy with F/OSS is great by me!
Good thing we weren’t talking about vi vs. emacs, huh? 🙂
AHAHAHA!
I’d say that the second decision is the more dangerous of the two. This opens the door for finding other similar networks to be information carriers – such as the telecom network – that had previously been telecommunications carriers. What’s really amusing is that these cable ISPs either still get the benefit of being telecommunications carriers when it comes to liability for material passing over their network… Or they don’t, and are now hideously liable for things like porn and copyright infringement. My guess, given the pro-corporate leanings of the court is that they aren’t liable.
Agreed about ISPs. For Email, Web browsing and non-binaries NNTP, good ol’ ISDN was powerful fast.
There aren’t a lot of commercial (non-porn) services on line, since what they have tried to put there is already available in a better format. (It’s called Television for goodness sake.)
The only thing most people will use the Mbit+ line for is file sharing.
[If you’re on Windoze, get peerguardian2.]
The most excellent blog BoingBoing provides a link to a torrent of today’s press conference regarding the Grokster decision, held jointly by the EFF, Grokster, StreamCast and a couple other interested parties.
As soon as I post this I’m off to open up the Torrent file.