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January 25, 2005

Once More Into the Betamax Breach

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Yesterday, the major motion picture studios and the recording industry filed a brief [PDF] in MGM v. Grokster arguing that the Betamax defense "should not apply when the primary or principal use of a product or service is infringing." They specifically reject the "mere capability" test that the majority of the Supreme Court endorsed in 1984.

Fred von Lohmann has now posted a response over at Deep Links. The gist? If we substitute a "primary use" test for mere capability, we swap an incentive to explore new business models with an incentive to "let slip the dogs of litigation as early as possible, before a new technology starts proving its noninfringing potential." While the Betamax test has allowed technological innovation to move forward, a "primary use" test would force it into retrograde.

Ed Felten also has a must-read post on two of yesterday's briefs -- the Solicitor General's brief [PDF] and a brief from a group of anti-porn and police organizations [PDF]. He argues that the briefs "are caught between nostalgia for a past that never existed, and false hope for future technologies that won't do the job." What they really want, writes Felten, "is [an Internet] that is easier to regulate, a net that is more like broadcast, where content is dispensed from central servers."

Their main criticism of Grokster is for its "engineered ignorance of use and content" (p. 9; note that the quoted phrase is a reasonable definition of the end-to-end principle, which underlies much of the Internet's design), for failing to register its users and monitor their activities (e.g., p. 13), for failing to limit itself to sharing only MP3 files as Napster did (really! p. 17), and for "engineer[ing] anonymous, decentralized, unsupervised, and unfiltered networks" (p. 18).

These arguments (as the lawyers say) prove too much, as they would apply equally to the Internet itself, which is ignorant of use and content, does not register most of its users or monitor their activities, does not limit the types of files that can be shared, and is generally anonymous, decentralized, unsupervised, and unfiltered.

Fascinating stuff -- and no doubt there will be much more to come. Once again, the spots to watch for briefs are here and here.

[Note: I posted this in extreme haste, and have since edited for coherence/readability.]

Comments (3) + TrackBacks (0) | Category: Laws and Regulations


1. Ronald D. Coleman on January 25, 2005 9:35 PM writes...

"Prove[s] too much" because it "would apply equally to the Internet itself"? What kind of argument is that? You may as well say it applies to the universe itself, too. But somehow courts have found the existence of contributory liability despite the fact that the argument "applies to the universe itself." We expect "blindness" from the universe and from the Internet. But "willfull blindness" from sentient carbon-based units making money off someone else's work is something else altogether.

Copyright is being abused by its owners all over the Internet. But Grokster is not Betamax, and it's not the hill copyfighters should want to die on.

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2. Alexander Wehr on January 27, 2005 4:20 AM writes...

To Ronald D. Coleman

I am an avid p2p user, and also an avid technology user.

The outcome of mgm v. grokster regarding the (impossible task of) stifling of p2p does not bother me in the slightest,

The problem i have with a ruling aginst grokster is this:

I warship the idea of technology with infinite potential, but holding companies to a "negligence" or "compliance" standard would result in copyright interests strictly regulating new devices, removing major chunks of functionality.

This has already been done with DRM included in itunes and napster.
Under copyright law it is fair use to change my music's format, use it in the player i choose, edit it in my own home and create my own versions for personal use.
The DRM these purchased files are wrapped in deliberately prevent this. It would be fine with me if it simply prevented filesharing, but there are infinite uses, some not yet conceived, which are prevented by DRM (with DMCA protection).

A ruling against grokster would be the judicial equivalent of the SSSCA, which mandated strong DRM across every electronic device, thereby choking open source software to death, and subjecting all new uses of technology relating to media to copyright industry regulation.

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3. Ronald D. Coleman on February 9, 2005 4:15 PM writes...


Do you think infringing file sharing is illegal? Is the fact that it is almost certainly, as you say, impossible to stop, a factor in whether it should be illegal?

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