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« James Boyle on EU Software Patents: Question Your Assumptions | Main | A Grokster Quid Pro Quo for Copyright "Incumbents"? »

July 1, 2005

Grokster Pop Quiz: How Liable Are You?

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I missed it Wednesday, but Marty Schwimmer has one of his great, deceptively simple posts that rewards the ponder: Test Your Skills Post-Grokster:

Client is computer and software vendor. It wishes to introduce its new computer featuring a CD-RW drive and MP3 management software with the advertising slogan: "Rip, Mix, Burn Your Own Custom Music CDs."

Client is a consumer electronics manufacturer. It invents a video recording device. It wishes to say in its advertising that its product allows the user to 'build a library' of his or her favorite shows.

Clients ask you if the advertising actively induces infringement.

Comments (6) + TrackBacks (0) | Category: Laws and Regulations


1. Brad Hutchings on July 1, 2005 7:49 PM writes...

Sorry, no, not under Grokster. Neither scenario results in liability. The key quote from Grokster is :"The more their software is used, the more ads are sent out and the greater the advertising revenue,”. Neither of these scenarios comes close.
Furthermore, Betamax did not make personal librarying illegal. It acknowledged the issue along with time shifting and it addressed time shifting, specifically making it legal. It punted on librarying and Congress never felt the need to clarify. It's official grey area that most everyone (even copyright holders) just accept.

Copyfighters need to acquire some common sense about Grokster. They need to understand the proportionality of the infringement of sharing with 100,000 of your "friends" compared to say, mixing and burning a CD for a (real) friend. Both are illegal. Copyright holders deal with the widespread stuff with lawsuits, and either accept the local darknet stuff to some extent or deal with it with DRM. Honestly, nobody is ever going to get prosecuted for copying a CD for their Mom or their girlfriend. However, if you copy it for hundreds, thousands, millions, you've got a problem. If you create a business to help people do this and earn revenues proportionally, you've got a problem.

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2. Who is the sued inducer among many inducers on July 2, 2005 1:11 PM writes...

"Clients ask you if the advertising actively induces infringement"

The issue of inducing to infringe is actually more complex than the Supreme Court thinks. I will go further, the Supreme Court lives in dreamland. Here I will cover just one issue that is presented by asking a simple question:

If a p2p downloader-cd burner was "induced" to infringe by 3 p2p programs, three hardware makers, 5 blank cd manufacturers, and one ISP, which of the 12 inducers is the one liable or sued for the infringement and who determines this?

Rafael Venegas

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3. Flawed empirical deduction in Grokster case on July 3, 2005 5:26 AM writes...

I wonder, has anyone asked a proven downloader who induced them?

In Grokster, it seems that this was not done and the court decided that they could figure out that Grokster was the inducer through mere empirical deductions.

But empirical deduction is known to be a flawed method (ask any scientist)to get at the facts.

Here is how the court decided that the inducement worked:

1. Groskter said or suggested that downloaders could copy copyrighted songs.
2. Downloaders copied songs.
3. Grokster, therefore induced the copying of copyrighted songs.

We therefore have a flawed empirical deduction. Downloaders could have really been induced by other forces or a variety of forces or simply by the freeness-speed (by far the greatest inducement) of the downloads.

Rafael Venegas

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4. Alexander Wehr on July 3, 2005 11:36 AM writes...

to Brad Hutchings:

the point here is that the legal and so called "local" copying you claim is dismissed as nothing requires tools.

Under this new standard (and especially with the DMCA) these tools can now be destroyed quickly and quietly in their proverbial bassinettes.

Additionally, i'd like to point out that the RIAA and MPAA are now revving up a new lobbying/pr campaign claiming this individual copying is even more "heinous" and "devastating" than p2p. As I predicted long ago theyre using the threat of p2p as an end run on all progress made regarding fair use since the first recording devices were invented.

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5. Brad Hutchings on July 4, 2005 12:32 AM writes...

RTF decision Alexander. Grokster got shot down because their business intent was to enable widespread infringement and their resulting revenues were proportional to more than 90% infringement on their network. If they were not ad supported -- say users had to purchase the client instead of getting it for free -- proportional to use (read "infringement"), the Grokster test as constituted would not apply. If they were just a bunch of geeks giving away the software and not trying to monetize the network, the Grokster test would not apply. But guess what? In both those cases, the network would not have become as large as it did. The revenue machine made it mainstream, and the revenue stream was directly proportional to use, and thus, more than 90% proportional to infringement. In any case though, people who upload to Grokster are guilty of infringement, regardless of how the technology provider was found. And the RIAA is suing them too. The technology to watch now is BitTorrent. My money says that so long as Bram doesn't keeps his business model infringement neutral, he's safe. Hubs and uploaders will be nailed, but they should be!

I haven't heard the latest scare campaign. I'm sure they're killing kittens and puppies (ala PETA) right now getting ready for this one. But burning a mix for a (real) friend (who you know) ain't fair use. It's just the grey area that is belt handled extra-legally (meaning outside the legal system). This is what DRM addresses, and even then, the popular systems are pretty lenient. DRM does not, contrary to the false assertions of PhDs like Cory Doctorow, have squat to do with preventing P2P sharing.

Day 7 under Grokster and, contrary to the EFF hype, my iPod is still legal.

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6. Whatever happened to the presumption of innocence? on July 4, 2005 1:35 PM writes...

Brad Hutchings: "In any case though, people who upload to Grokster are guilty of infringement, regardless of how the technology provider was found."

Whatever happened to the presumption of innocence? Simply put, no one is guilty until proven to be so in court, not in a cartel office.

At one time I made available some mp3 song files, about 50, under Napster. Sorry Brad, but I was not guilty of infringement because I was the owner of the copyrights.

This brings us to downloaders (the target of RIAA lawsuits). Downloaders of old have no way to determine if any specific song-recording available on p2p are in the public domain or not or if it was posted on p2p by the owner of the copyrights. The question here is if p2p should be prohibited because downloaders are not privy to the copyright status of the uploaded songs or if the uploader has a right to upload.

As you can see, Brad, the issue of infringement guilt is quite complex. Copyright infringement (whatever that is) is also a criminal act and there is no need witch hunt everyone to make everyone a crimnal.

Rafael Venegas

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