I'll christen a new unofficial preface today, in honor of the most important Supreme Court decision for Obnerites in 2005.

Today, the Supreme Court ruled that "one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties."

It sucks that Grokster lost, but apart from the ambiguity inherent in the "affirmative steps to foster infringement" part of the rule, it really doesn't do much to disturb the Betamax ruling, which held that Sony was NOT secondarily liable for the acts of its users because it did not promote illegal use of its technology. However, what is clear is that P2P network providers cannot hang their hats on the Betamax court's ruling that no technology "capable of substantial non-infringing uses" will subject its developers to secondary liability.

It is difficult to know how this will effect sharing, but it pretty much guarantees that no service like Grokster will last long without a lawsuit in America.

This Voice column is pretty helpful.

I don't know about Betamax standing tall and fast man. Scalia pretty much made it clear that the case is out-dated. The concept of fair use is intact, but I don't really think it applies here. I haven't read the decision yet, but let it be said that I wasn't surprised in the least that they came down this way.

I thought it wouldn't be as close as 5-4 though.

It wasn't 5-4, it was unanimous in favor of MGM.

As for Betamax, I really just meant that at heart, Betamax said the same thing about promoting illegal use. Today's decision didn't set any kind of "percent of infringing use" bar, and neither did Betamax.

The thing I don't see is how Limewire, Morpheus or any other commonly-used P2P servers don't foster infringement. That's what they're for, to trade stuff that isn't yours. I guess I'm just ignorant. What legitimate purpose could I use Limewire for?

Dammit you're right it was unanimous.

Like I said, I've obviously got to READ the opinion.

Agree.

Have you had much copyright law?

<----------Went to law school.

The legitimate uses would include trading materials to which you own the copyright, trading things covered under less restrictive licenses (like Creative Commons licenses), and trading public domain materials.

I take Copyright next semester, so I don't probably have the background you do, although I've informally acquainted myself with key concepts, especially through following tech cases like this one.

How could a P2P ensure that their users were trading only this material? A lame-ass disclaimer/warning. If I were the RIAA's cadre of lawyers, I'd be sharpening my knives for battle right now.

One way would be to include token filtering software that checked the name of files against a list of copyrighted stuff. This is easily circumvented, as Napster users proved with their clever "etallicaMay" workaround, and the court would probably not be sympathetic to an effort that ended there. Another way is to use more sophisticated "acoustic fingerprinting" - checking files to see if any of them contain a specific portion unique to a known copyrighted work. This would be harder (though possible) to circumvent, but would be unbelievably costly to maintain.

What gets me is what the Court considered to be "evidence" that Grokster intended its users to infringe upon copyrights:

1) They marketed themselves to Napster users, a "known source of demand for copyright infringement," establishing a "principle" intent to foster infringement themselves.

What if I market bleach in rural Indiana, a "known source of demand" for meth labs? This is pretty weak.

2) They didn't attempt to incorporate filtering tools.

Like I said, available filtering technology is either ineffectual or prohibitively expensive - effective filtering would cause Grokster's entire business model, and probably any other market-friendly model, to fail.

3) Grokster makes money through advertising. More users = more advertising. Most users = infringers. Ergo, infringement = more profit.

This is a very slippery slope, and now that I think of it, it's more akin to a "percentage of infringing users" rule than I am comfortable with. It basically means that you cannot make money through supplying P2P software.

Didn't Napster end up doing this?

And would it really be that hard to set this up? If a network can keep track of file hashes in order to pair up identical, yet misnamed, files, they could do the same for acoustic fingerprints.

Or maybe I don't know what I'm talking about.

I'm not really upset with the ruling. Yes, there are legitimate uses for P2P software, but how much legitimate material is really being passed that way? If I'm looking for something legit, i.e. artist sanctioned track releases or maybe even public domain images, it's easier to find them online than through P2P.

As someone who creates for a living, I'm sensitive to copyright issues. That being said, I'm pretty lax with it as well. I've been known to give my work away for free more often than I probably should. I also know that I'm being a hypocrite when I snag a picture off someone else's website and post it on here sans permission and/or license. I know that and I accept it.

I don't think the bleach argument is all together applicable, but I'm going to leave it alone because the next analogy is easier and I won't have to think.

All too often you hear the argument that if someone uses a hammer to break into a car, then by the same reasoning we should outlaw hammers despite their legal applications. To me, it's more appropriate to equate P2P sharing with the plastic coverings you can buy online to put on your license plate to avoid being snagged at red light cameras. Sure, it keeps your license plate all nice and clean and helps it last longer, but the real reason you got it was to skirt the law.

And for the record, I hate red light cameras.