p2pnet - rss feed: Morpheus, Grokster fight Hollywood
If p2p programs Morpheus and Grokster are killed, won’t their users continue to share files anyway?
That was the essence of a question posed by 9th US Circuit Court of Appeals Judge Sidney R. Thomas in Day One of hearings which will define how p2p works - or doesn’t work - for the future.
And, “If that’s true, aren’t we chasing the wind here?” - asked Thomas.
Having already destroyed p2p programs Napster, Aimster and Audiogalaxy, Hollywood now wants to similarly eliminate Morpheus and Grokster as it seeks to gain total control of the emerging commercial p2p file sharing industry, and how people handle music and other digital media online.
Hollywood lawyer Russell Frackman countered that Morpheus, “would eventually degrade and file-swappers would lose interest,” continues Dawn C. Chmielewski in a Mercury News story here in which, “A skeptical 9th U.S. Circuit Court of Appeals panel pressed the [entertainment industry] lawyers to defend their contention that file-sharing services should be stripped of the protections afforded technological innovation by the U.S. Supreme Court.”
Central to this David and Goliath battle where Morpheus (StreamCast Networks) and Grokster Ltd are taking on no less than 28 heavyweight movie studios and music labels is the question: Can commercial (or any other, presumably) companies be held responsible for what people do with their software?
Last year US District Court Judge Stephen Wilson ruled the owners of the p2p programs Grokster and Morpheus couldn’t control how people use their apps and so couldn’t be held liable for piracy by third-party users. Wilson cited the 1984 Sony Betamax case where Hollywood tried to have VCRs banned. However, the Supreme Court ruled that use of new technology to infringe copyrights didn’t justify such an action.
“Grokster and Streamcast are not significantly different from companies that sell home video recorders or copy machines, both of which can be and are used to infringe copyrights,” he decided.
Grokster and StreamCast say their software has valuable, and legitimate, business and academic applications and that they can’t control what files users do with their program and thus, can’t be held responsible.
It all started in 1999 when Big Music’s enforcement organ the RIAA (Recording Industry Association of America) sued Napster and buried it.
Germany’s Bertelsmann AG (better known as BMG) dug the body up, tried to revive it and failed. Aimster (Madster), Audiogalaxy and SongSpy (itself a pale attempt to cash in on p2p file sharing) were similarly killed off by the record labels and latterly, in a scenario reminiscent of Mary Shelly’s Frankenstein, Roxio bought Napster and ever since, has been trying to patch it back together into a commercial semblance of the orginal.
Things were going well for Hollywood - until its attempts to crush the opposition were brought sharply to a stop (temporarily, prays Big Music) by Wilson’s ruling.
“In our view, there is one single, overarching question before the court and that is whether the defendants can legally build, operate and profit” from a file-swapping service “that is built on preventable - I underline preventable - copyright infringement,” Chmielewski has Frackman saying.
“Senior Judge John T. Noonan interrupted Frackman, asking him to explain why the Betamax ruling should not extend to this new technology,” she goes on. ‘Sony did many of these things.’
“Frackman said Sony’s relationship with the consumer ends with the sale of a device. Grokster and Morpheus maintain an ongoing relationship beyond the initial offer of free file-swapping software, one that includes selling advertising directed at an audience attracted by the lure of stolen goods.
“One academic study found that 90 percent of the content exchanged on file-sharing networks is copyrighted, Frackman noted.
“Noonan pressed further, asking whether the authorized exchange of 10 percent of an estimated 750 million swapped files - games, live recordings and public-domain works such as Shakespeare - met the criteria the Supreme Court set forth in the Betamax case.
‘That sounds like a lot of non-infringing use to me’.”
The Electronic Frontier Foundation’s (EFF) Fred von Lohmann, representing StreamCast, said Morpheus and Grokster meet the threshold set by the Betamax case, continues the Mercury News story.
“Their software is already used to legitimately distribute millions of licensed games and exchange live concert recordings with the blessing of major acts, including Phish, Pearl Jam and the Dave Matthews Band.
“You’re absolutely right,” observed Noonan about the applicability of Betamax. “Your problem is the gloss that Napster put on it.”
Von Lohmann, “pointed to the distinction that Wilson drew between the new file-sharing services and Napster, which was liable for file-swappers’ infringement because it maintained a central index of copyrighted works and directly brokered the exchange. Grokster and Morpheus, he said, have no involvement with the music-sharing, beyond distributing software.”
Meanwhile, adds Chmielewski, “Carey Ramos, a New York attorney representing songwriters, received a stern rebuke from Noonan to ‘curtail that use of abusive language’ when he began to heatedly criticize the services as ‘trafficking in pirated goods’.”
February 6th, 2004 at 9:22 pm
With the current swoop on Kazaa, I’d just like to note that since I explored music with Kazaa- just in recent months, I’ve purchased more Cds than for a long time - and with artists I hadnt formally known about. The 30 second samples you get at various track-selling sites dont really give a taste of the artist as they often cut out before the artist gets going. Being able to hear more of a song I have now developed new favorites.
Also with Kazaa I can do a search on a song title. Through this method I have explored other artists singing favorites songs and have then developed an interest in them.
Those I know who use Kazaa dont swap at the expense of buying but to enhance it. We tend to respect artists and not want to take from their income so we buy when we get a sense of an album we’d like- after all you get the cover to curl up with etc too. In a sense I use it as a substitute radio station where I can pick and choose when and what I want to listen to and can revist a song at my leisure to decide whether that’s the one to buy. Ok the artists may not get the royalties as they would on radio but they dont when friends lend me something they’ve bought and say ‘listen to this’. This sort of exposure seems to have been the life blood of music all the time I’ve been into it (and I’m 51 and now happily exploring new artists- and even recently bought an Australian artist I didnt know befiore I explored some of his tracks on Kazaa. Ironic when the Australian Music Industry was the one behind the recent swoop). One could be cynical about the timing of the swoop with some big businesses just about to move into paid tracks in Australia!