Big Win for copyright holders
p2pnet.net News View:- Just for the record: MGM versus Grokster was a big win for the Industry and a loss for tech entrepreneurs. The US Supreme Court has given copyrights holders cart blanche to test the legal waters and sue everything in sight. The court has done so by awakening the dormant “Active Inducement” test in copyright law. Now, let’s go thru this preliminary hit list.
Although I’m against the courts ruling on many levels, for now I’ll just stick to the areas this decision is most likely to effect. Or infect, I should say. This is a short list, the complete blow by blow on the Grokster decision will be posted soon.
Bittorrent, eDonkey and other Mods developers
Mods are applications based on Bittorrent, eDonkey and other p2p software altered or modified to enhance the p2p experience. The various mods incorporate features which can be seen to induce infringement, for example built-in RSS support or search plug-ins to various ‘illegitimate’ tracker sites.
Yes, the Sony rule is still in effect and protects technology. But it doesn’t protect all technology. Example: descramblers are illegal. Ad and spyware aren’t welcome either, but that’s a old news.
The new trackerless feature in Bittorrent can also be construed as illegal. Grokster was hammered for the fact that in didn’t employ filtering tools. Now, not actively providing DRM will be the new standard by which the Industry can and will sue.
P2p sites
Those Bittorrent tracker sites, ’search-engines’ and ED2K forums are hereby warned. You can take down the PayPal accounts to help with the legal costs. Posting links would no longer be seen as just a “hyperlink”. Instead, they’ll be seen as actively inducing people to download protected materials. Facilitating this practice would be seen as inducement, thereby making webmasters and site owners liable.
Don’t worry; Survival guide 2005 part II is on its way.
Service Terms and Customer Support
Businesses based on the Sony rule should overhaul their Terms and Conditions immediately. The Grokster ruling has ushered in a new era of tort and liabilities in copyright law.
An email disclaimer isn’t enough anymore. Companies should have thorough internal and external email policies in place and should let a legal expert track, or at least set, guidelines on how the company communicates by email.
Why? Well, Napster, and now Grokster, were nailed on emails. Knowledge of infringement and now the inducement of infringement can be deduced from seemingly innocent-looking emails by clever lawyers and willing judges.
So nix the mails and back to the office chatter. Or use Skype.
Marketing
The Grokster ruling will have a major effect on how technology is marketed. Where access providers were bold in the past, they’ll now need to have their legal departments mull over every ad campaign. Dutch broadband provider Chello primetime TV spot “7 Seconds in Tibet” would be a thing of the past.
Marketing strategies would be more legal then anything else.
Tech development and Entrepreneurs
Think about it. If it were not Grokster but Kazaa in the defendant’s box and Niklas Zennström was still boss, what would become of Skype? Better yet, would Skype ever have come into existence if this were 2002?
The valuable lessons Zennström learned from Kazaa were used in Skype. For example, no adware and a more solid business-model. In my opinion, Skype is far more important then iPod when it comes to online business innovations.
Telco’s have been more tolerant than the music and film industry in accepting something for what it is and adapting to it. Learn here why: VoIP: a lesson in tolerance.
And this brings me to the single most terrible consequence of the Grokster ruling.
Innovation and compensation
The Supreme Court has, in essence, poisoned the well of innovation.
Now, only industry approved services can survive out in the open. This means more DRM infested consumer deceiving services.
Just like Apple took Napster and made it into the DRM invested iTunes.
The industry will sue the innovation breeding grounds of Modders and p2p sites dry, steal their ideas and cheat them out of recognition and compensation.
Did Shawn Fanning ever receive a penny from Steve Jobs? No? Well, he should have.
Mods and p2p sites will live on but it will only be for the happy few. IRC channels and newsgroup will flourish, but not blossom.
In the end we can only imagine what would have been.
Raymond Blijd – fk2w
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June 28th, 2005 at 7:50 pm
“The US Supreme Court has given copyrights holders cart blanche to test the legal waters and sue everything in sight.”
OH COME OFF IT! Like the entertainment industry’s wolf pack of lawyers couldn’t already come up with clever (and expensive) ways to sue WHOEVER for WHATEVER reason before this ruling. Sure they got some shiny new bullets, but they already had the big guns and plenty of ammo. Come on! Michael Jackson is INNOCENT just like OJ was! It does not matter that much what the law says, statistically those who spend the most money on the case win (at least in the good ol’ USA…).
June 28th, 2005 at 8:20 pm
Then again, on the subject of Michael Jackson he deserved to get off. It’s really hard to convict a guy when there’s no credibility for the accuser. If the mother hadn’t been such a scumbag maybe MJ would have actually gotten punished.
June 28th, 2005 at 8:45 pm
Oops my vault Jon
here’s the right link: http://www.fk2w.com/html/modules.php?op=modload&name=News&file=article&sid=51
June 28th, 2005 at 8:54 pm
I do not know if you understand just what the impact of a ruling in favour of Grokster would have been. Ruling in favour of persons who willfully make it possible (and actively help) to damage others would have an enormous and devestating impact on our legal system. It is something that simply cannot be accepted and the Supreme Court correctly saw no reason why the need for “innovation” should change that. The court did not criminalize p2p as such but held that you have to take into account other people’s justified interests. The decision is a good decision. Even more, it is the law.
June 28th, 2005 at 9:09 pm
Fixed : )
June 28th, 2005 at 10:46 pm
Yer right, that was an undeserved slam on Michael. Just refering to OJ would have been better. My bad (no pun intended). The real point being, the USA has the best justice system money can buy… which in the long run does not bode well for P2P or anybody else who has displeased or is trying to compete with the big media… um… thugs. So disregard everything I said…
June 28th, 2005 at 10:48 pm
Yeah, just like that nice ole patent system ya’ll got over there in the US of A
June 28th, 2005 at 10:48 pm
For what that’s worth.
June 29th, 2005 at 12:38 am
Wrong site for stupid posts pal.
June 29th, 2005 at 5:03 am
What the media won’t tell you about the peer-to-peer debate…
Filesharing – The New Economy of Community
http://antagonise.blogspot.com/2005/06/filesharing-new-economy-of-community.html
Morpheus/Grokster Senate Ruling Explained
http://antagonise.blogspot.com/2005/06/morpheusgrokster-senate-ruling.html
P2P Vs The 0.01 Percenters
http://antagonise.blogspot.com/2005/03/p2p-vs-001-percent-ers.html
June 29th, 2005 at 5:04 am
Quote:
“Copyright: Sharman Networks Ltd does not condone activities and actions that breach the rights of copyright owners. As a Kazaa user
you have agreed to abide by the End User License Agreement and it is your responsibility to obey all laws governing copyright in each country.”
This disclaimer on the KaZaA website is 90% of what is needed to survive the new inducement test. The other 10% is making sure you don’t actually tell your customers that you want them to break copyright laws using your service. You don’t have to use filters. You just have to make sure you aren’t promoting the illegal uses of your product or service, and are instead throwing the legal ones out there and promoting them actively.
The ruling does not say “file sharing is illegal” nor does it say “if someone uses your service to an illegal end, you’re liable.” It says “if you induce (Dictionary.com says: “1. To lead or move, as to a course of action, by influence or persuasion”) someone to infringe on a copyright with your product or service, you’re liable for their actions.” This is reasonable because it is possible that your “influence or persuasion” is the reason someone performed the act. Maybe they thought it was okay because you’re promoting the act.
(It’s not like KaZaA Gold making people think they had already paid for the things they downloaded when they bought the software, that’s just plain stupidity and not the same as KaZaA telling them “get Britney Spears songs off our service!”)
If you don’t “move…by influence or persuasion” to infringe upon a copyright, then you’re not liable. eMule, for example, doesn’t even state a purpose other than “a file sharing client.” File sharing isn’t illegal by itself. The users are liable until the provider starts telling the users to perform the act.
I’m going in circles. You get the damned point. I think file sharing software is the greatest thing since the $80 256MB MP3 player, but I still want this to be clear. Quit crying wolf.
June 29th, 2005 at 6:57 am
yeah, take away those paypal links. tracker owners – pay for it yourselves.
p2p is free and must remain that way – without restrictions of any kind. this includes ratio tracking and registrations.
a person who runs a tracker knows that it costs money and should be willing to pay for it themself. we p2pers do not have bottomless wells of money.
there are many popular and thriving trackers whose owners do pay the costs themselves and do not beg or require people to “help” them pay. it’s your website. YOU PAY FOR IT. one LOKI scam was enough. if you can’t pay the server bills, you have no business running a tracker.
June 29th, 2005 at 9:59 am
First, crying wolf is one way to create awareness. Second, I hope you’re right about the disclaimer but as former legal counsel who as drafted numerous disclaimers and T&C I can tell you this: they are smoke screens devised by lawyers into having a false sense of security. You can claim all you want but in front of a judge all bets are off.
Just look at Grokster’s disclaimer
June 29th, 2005 at 12:13 pm
What, pray tell, is necessarily infringing about BitTorrent’s “trackerless” system?
June 29th, 2005 at 3:05 pm
samuel clemens (i believe) said: “The law is a ass.”
June 30th, 2005 at 5:48 am
It remains up to the plaintiff to prove that the defendant was persuading its users to break the rules. Simply having people using your service to break the rules is not enough. If it was, the entire Internet would be doomed, because ISPs and their related providers could be held liable for their users’ actions.
In front of a judge, they’re going to have to prove the inducement factor, they can’t just say “people are using this service for illegal means, therefore the service must be pushing them to do so.”
If you’re former legal counsel, why can’t you use proper grammar and mechanics rules in your usage of the English language?
Your English errors are irritating beyond all sanity. If you were a lawyer and I read your response, I wouldn’t hire you to write a letter to a five-year-old. “…who as drafted numerous disclaimers” and a few missing commas and periods show all that I need to know.
It’s amazing who can get through the educational system these days.
July 1st, 2005 at 1:43 pm
I’m glad I wasn’t the only one that noticed his booboos!
I wonder what line of work he’s in now….
July 1st, 2005 at 3:30 pm
Probably a F.U.D. specialist. To hell with them all.