Email from France – 8
p2pnet.net News Feature:- Napster is revenged.
One thousand, two-hundred-and-eighty-four days ago, on Monday, February 12, 2001, the US Court of Appeals for the 9th Circuit was sentencing Napster to death.
On Thursday August 19, 2004, the same court saved the entertainment industry from what could be seen as a post-modern Betamax revival.
In a 26-page judgement, the Court compared the Napster situation with that of Grokster and Morpheus. But it didn’t find a single similarity between the two – technically or legally – chiefly because the FastTrack network the two defendants were using (StreamCast switched to Gnutella before becoming a multi-protocol software) doesn’t offer control over content being swapped by the users.
Thus, ruled the judges, neither StreamCast nor Grokster Ltd can be held liable.
More generally, this case confirms that providing decentralized p2p solutions doesn’t amount to contributory copyright infringement or vicarious copyright infringement since the companies are, in effect, the landlords, not the dance hall operators (p.21), and because a substantial amount of legal content is being shared (p.16).
The court also chastised the music industry by reminding it of Wilco, “whose record company had declined to release one of its albums on the basis that it had no commercial potential”. Wilco “made the album available for free downloading, (…) the result sparked widespread interest and, as a result, Wilco received another recording contract”, said judge Thomas, who also underlined the avaibility of public domain works such as the ones released by the Gutenberg Project, or Archive.org.
In Napster, the court ordered the company to place 100% effective filters on its servers to stop copyrighted content from being illegaly swapped.
In MGM v Grokster, “In arguing that [the ability to place filters] constitutes evidence of the right and ability to supervise, the Copyright Owners confuse the right and ability to supervise with the strong duty imposed on entities that have already been determined to be liable for vicarious copyright infringement”, the judgment says (p.23).
True. How can you ask an innocent party to avoid liability if he’s not liable in the first place?
Too bad for Audible Magic and its sponsors, the RIAA (Recording Industry Association of America).
Notably, the Court asked the industry to fuel down and probably saved we Europeans from having our own INDUCE-inspired bill.
Indeed, “not only would such a renovation (INDUCE) conflict with binding precedent, it would be unwise”, Judge Thomas says (p.25).
“History has shown that time and market forces often provide equilibrium in balancing interests, whether the new technology be a player piano, a copier, a tape recorder, a video recorder, a personal computer, a karaoke machine, or an MP3 player”.
Except for the Supreme Court of Netherlands which issued quite similar judgement with respect to Kazaa BV, European courts haven’t yet had a chance to tell French lawmakers how important the copyright law is, and how fairly balanced it must be.
This Morpheus/Grokster decision, foreign to the EU, should, then, echo in Europe and might be welcomed joyfully by the European Union Copyright Directive opponents.
Indeed, our home-made DMCAs (both implementing the 1996 WIPO treaties) haven’t been put into action yet in many member states, including France, and an upcoming December, 2004, report is expected to tell the European Commission how appropriate such a Directive is in the Internet context.
Howecver – it could be that, inspired by Judge Thomas, this report will advise the Commission to leave things as they are and to Let the Music Play.
Thank you America.
(And when it comes to fighting the INDUCE weapon of mass destruction weapon, we’re all Americans.)
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Guillaume Champeau, who runs Ratiatum.com, p2pnet’s opposite number in France, and p2pnet editor Jon Newton, decided they owe it to their respective readers to trade items.
Champeau Emails from France: One, Two, Three, Four, Five, Six and Seven.
A new Ratiatum and p2pnet collaboration will be announced when p2pnet changes its look in the very near future.
Stay tuned.
