I wanted to get YOUR idea of what you think the decision will be, and why?

Thanks!
~Code

I would hope the justices would look beyond just MPAA v Grokster to weigh what their decision might mean.

If they rule in the MPAA's favor, katie bar the door. Every small-minded mayor (in particular, Chicago's Dick Daley) will file a lawsuit against EVERY gun manufacturer in the country. If Grokster can be held liable for what users do with their product, then certainly gun manufacturers can be held responsible for gun violence.

And of course, there would be the literal reversal of the Betamax decision by ruling in the MPAA's favor.

Just my 2 cents this morning.

I'm no legal expert, but judging from the Justice's questions the ruling could easily sway in favor of Grokster. The Justice's seemed concerned by the potential chilling effect a ruling in favor of MGM could have on technological development. Holding the companies liable for damages users of their products create is far more dangerous than the damages themselves- and I think the court will rule with that philosophy in mind.

Then again, nobody would have guessed the court would have decided any privately owned land can be bulldozed by any business developer.

Don't forget that hot button issue about the 10 commandments could be ruled on today as well.

good thing Universal V. Sony happened before Sony became a studio (MPAA member.)

if Sony had been a studio back in the 80's do you think we would have VCR's now?

CNN: File Sharing companies ARE LIABLE for damages.

Details to follow...

It's confirmed: Grokster loses. File sharing companies are responsible for damages.

Unreal. I never thought I'd see it go this far.

That whoosh! you just heard was Grokster moving its operations to Antigua.

I think I have a bungalow staked out in a central american country near a bar and just off a beach in small town with a restaurant that makes a roasted pork dish that is to die for. there are 3 banks I can rob on the way down there and there is a steady supply of young american girls who "disappear" from carribean islands and show up down there every few weeks. additionally nobody will question my posession of numerous assault weapons since my neighbors have to be heavily armed to guard their "crops" as well. further, I have a satellite descrambler and a tivo unit to go with the 105" projection tv that I plan on setting up when I open my "american cinema"

If I am to be criminalized then I'll make it count. let's hear the verdict already, I'm getting old.

I have room for 3 partners. I'm starting the bidding for buy ins at 50k. phone lines are open.

The supreme court has decided that file-sharing programmers can be sued.

www.msnbc.com

In the past two weeks, the Supreme Court has handed George Bush a tremendous club with which to beat opponents to his nominations for our courts. Never before have I seen such outrageous legislation from the bench.

Not only are our courts throwing original intent out the window, they are even throwing their own precedents (i.e. Sony) out the window.

So now, according to SCOTUS, it is fine for the city to steal your house and build a shopping mall, but if you write software that someone else uses for trading a music file, you are liable for damages. And if you are a reporter with a confidential source, you are now in jail unless you cough it up.

Bush is going to use these decisions to hammer into submission all those who oppose the appointment of conservative judges who believe laws should be made by Congress, not men in black robes with lifetime tenure. As well he should. The courts have proved Bush's point better than any rhetoric Bush or his allies could produce.

So, if Kazaa's in Austrailia, can they be affected by this ruling (Their legal problems there nonwithstanding)

http://www.msnbc.msn.com/id/8375955/

MSNBC Tech/Science
Web file-sharing sites may be sued, justices rule
Decision OKs lawsuits if service encourages illegal swapping

Supreme Court Rules Against Grokster!
June 27, 2005
In a stunning defeat for StreamCast and Grokster, the Supreme Court disagrees with two lower court rulings. The lower courts had ruled that P2P developers are not responsible for the content of their networks.

http://www.slyck.com/index.php

Doesn't this now require the complainant in the lawsuit to prove intent for the service to be used in this manner? Intent is usually difficult to prove.

In a sense, this "final solution" ruling is no surprise, given their recent rulings on "eminent domain" and, also today, the Ten Commandments displays.

This ruling, I predict, could also be used as a club against conservative voices, like those who may have used P2P programs to reveal Dan Rather's Bush National Guard documents to be a hoax. I am also thinking about Michael Savage's website on which he has streaming video of Americans and others who have been decapitated by Islamofascists in Iraq and elsewhere. (Unfortunately, on this issue he essentially sided with Goliath against David.) I can see a situation where the major media can swoop down and move to have his website shut down under the pretext of "copyright violations," when the real intent would be to ensure that any image or fact the Big Media doesn't want you to see or hear - such as those beheadings, or the mutilation of American workers last year in Fallujah - remains unseen and unheard. (At this point, they're doing everything in their power to suppress Edward Klein's new book on Hillary Rodham Clinton.)

"No. 04-480, MGM Studios v. Grokster, reversed 9-0, in an opinion by Justice Souter. Justice Ginsburg concurred, joined by the Chief Justice and Justice Kennedy; and Justice Breyer concurred, joined by Justices Stevens and O'Connor."

http://wid.ap.org/scotus/pdf/04-480P.ZO.pdf

Unanimous ruling. Lots of comments on slash dot. Here is the majority opinion authored by Justice Souter.
http://wid.ap.org/scotus/pdf/04-480P.ZO.pdf

Justice Ginsburg concurred, joined by the Chief Justice and Justice Kennedy; and Justice Breyer concurred, joined by Justices Stevens and O'Connor.

and

Justice Ginsburg concurred
http://wid.ap.org/scotus/pdf/04-480P.ZC.pdf
joined by the Chief Justice and Justice Kennedy;

and Justice Breyer concurred
http://wid.ap.org/scotus/pdf/04-480P.ZC1.pdf, joined by Justices Stevens and O'Connor.

Monday, June 27, 2005

The Treatment of Sony in Grokster
One of the most important issues in Grokster case is the fate of Sony, the prior Supreme Court case,in which the Supreme Court held that the Betamax (VCR) would not serve as the basis for a contributory infringement action against Sony, because it was capable of "substantial noninfringing uses." Here is what today's unanimous opinion says about Sony:

In sum, where an article is ?good for nothing else? but infringement, Canda v. Michigan Malleable Iron Co., supra, at 489, there is no legitimate public interest in its unlicensed availability, and there is no injustice in presuming or imputing an intent to infringe, see Henry v. A. B. Dick Co., 224 U. S. 1, 48 (1912), overruled on other grounds, Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U. S. 502 (1917). Conversely, the doctrine absolves the equivocal conduct of selling an item with substantial lawful as well as unlawful uses, and limits liability to instances of more acute fault than the mere understanding that some of one?s products will be misused. It leaves breathing room for innovation and a vigorous commerce. See Sony Corp. v. Universal City Studios, supra, at 442; Dawson Chemical Co. v. Rohm & Haas Co., 448 U. S. 176, 221 (1980); Henry v. A. B. Dick Co., supra, at 48.

This is a restatement of Sony that is actually quite favorable to the Sony rule--because the Court seems to say that the limit of Sony is where the good in question is "good for nothing else" but infringing uses. The Court continues:

The parties and many of the amici in this case think the key to resolving it is the Sony rule and, in particular, what it means for a product to be ?capable of commercially significant noninfringing uses.? Sony Corp. v. Universal City Studios, supra, at 442. MGM advances the argument that granting summary judgment to Grokster and StreamCast as to their current activities gave too much weight to the value of innovative technology, and too little to the copyrights infringed by users of their software, given that 90% of works available on one of the networks was shown to be copyrighted. Assuming the remaining 10% to be its noninfringing use, MGM says this should not qualify as ?substantial,? and the Court should quantify Sony to the extent of holding that a product used ?principally? for infringement does not qualify. See Brief for Motion Picture Studio and Recording Company Petitioners 31. As mentioned before, Grokster and StreamCast reply by citing evidence that their software can be used to reproduce public domain works, and they point to copyright holders who actually encourage copying. Even if infringement is the principal practice with their software today, they argue, the noninfringing uses are significant and will grow.

But the Court sees the issue quite differently from the way it was framed by the parties:

[The Ninth Circuit's] view of Sony, however, was error, converting the case from one about liability resting on imputed intent to one about liability on any theory. Because Sony did not displace other theories of secondary liability, and because we find below that it was error to grant summary judgment to the companies on MGM?s inducement claim, we do not revisit Sony further, as MGM requests, to add a more quantified description of the point of balance between protection and commerce when liability rests solely on distribution with knowledge that unlawful use will occur. It is enough to note that the Ninth Circuit?s judgment rested on an erroneous understanding of Sony and to leave further consideration of the Sony rule for a day when that may be required.

These may be the most important passages in Grokster--the dog that did not bark--because they leave Sony as it was.

The above opinion was authored by Lawrence Solum at his blog:

http://www.lsolum.blogspot.com/

http://picker.typepad.com/picker_mobblog/

June 27, 2005
Lichtman: Hollow Victory in Grokster

MGM won on paper today, but my first reading of the opinion makes me wonder whether the victory will have any bite outside of this specific litigation. Intent-based standards, after all, are among the easiest to avoid. Just keep your message clear -- tell everyone that your technology is designed to facilitate only authorized exchange -- and you have no risk of accountability.

That is not the standard I was hoping for. As I wrote in the amicus brief,

http://www.law.uchicago.edu/faculty/lichtman/lichtman_mgm.pdf

I would have allowed liability to be based exclusively on objective evidence, for example a party's failure to alter its technology in a way that would significantly reduce infringing behavior without significantly interfering with legitimate.

The Court closed the door on this sort of inquiry, however. As the opinion makes clear, evidence of unreasonable product design can be considered only if there is also smoking-gun evidence of intent. Indeed, even outlandish design desicions are off limits without the relevant precursor.

Surely the Court realizes that well-advised bad actors rarely leave smoking guns lying about. Hence the victory here looks hollow, and in my view the legal rule seems poorly crafted.

Posted by Doug Lichtman on June 27, 2005 at 10:46 AM in Grokster/Brand X | Permalink | Comments (0) | TrackBack (0)
Grokster: Congress and the Courts

One of the interesting ways to approach Grokster is to imagine what would have happened had the Court come out the other way. Had the Court ruled in Grokster’s favor, one imagines that the issue of controlling peer-to-peer file swapping immediately would have risen to the top of Congress’s agenda. There is broad, bi-partisan support for the recording industry’s position on peer-to-peer in Congress, based largely on the fact that content creators are well-organized and well-financed whereas file-swappers are not. The broadband industry (i.e., those interest groups that fought so hard in Brand X) do support relatively unhindered peer-to-peer file swapping, since file swapping has driven demand for broadband and convinced millions to abandon dial-up, but the issue does not appear to be their top legislative priority, and they seem to be less influential in Congress than the recording and motion picture industries in any event.

Bottom line: At the end of the day, it may be that the result of Grokster is a legal landscape more receptive to peer-to-peer than a world in which Grokster wins in the Court and then Congress steps into the fold with new legislation. By losing the battle, file-swappers perhaps forestalled total defeat in the war.

Posted by Lior Strahilevitz on June 27, 2005 at 10:43 AM

"Bottom line: At the end of the day, it may be that the result of Grokster is a legal landscape more receptive to peer-to-peer than a world in which Grokster wins in the Court and then Congress steps into the fold with new legislation. By losing the battle, file-swappers perhaps forestalled total defeat in the war."

I think this sums it up fairly well.

Actually, this is interesting. I think it means that now the case will actually have to be tried in open court, right? At which time the copyright owners will have to prove they actually own the work, not the creators. Isn't this what George said before? Now Ms. Crow and Mr. Henley can get legally screwed by the bunch they just spoke up for?

Is the opinion currently online at this point in full text?

EFF has it. I'm starting to read it now.

This is the third place I'm posting this comment, or one similar, then I'm going to wait for all the overblown rhetoric to die down.

Hilary Rosen may be creaming her panties because she is so happy today, but that's because she's the stupidest primate in the bunch o monkeys.

Nothing changed, people. The Supreme Court did not rule to shut down Grokster.

All they did was say the RIAA/MPAA have to go back to square one and try again, maybe with actual evidence and facts instead of the mournful cries that pirates have stolen their stuff.

They've got almost 12,000 lawsuits against file sharers and haven't bothered to take that step with any of them, so I'd say Grokster has another 3 years or so left.

The Supreme Court also seems to feel that part of the answer is for p2p companies to filter out all of the "illegal" music, a move we've been pushing for years here at Boycott-RIAA.

We'll be doing it for a few more years, it seems.

This changes nothing.

"All they did was say the RIAA/MPAA have to go back to square one and try again, maybe with actual evidence and facts instead of the mournful cries that pirates have stolen their stuff."

Did you read the opinion. They basically said that the "actual evidence" indicates that Grokster and Streamcast are guilty as charged and dead meat!

Well, here's what I remember from March, mroop.

The RIAA/MPAA sought to have Betamax overturned.

JUSTICE O'CONNOR: Tell us, in the simplest way you can, what test you think Sony stands for and how the Ninth got it wrong, if you believe it.

MR. CLEMENT: Justice O'Connor, it stands for the test is whether or not there are commercially significant noninfringing uses. The Ninth Circuit got it wrong because it thought that test was satisfied by a combination of two things: being able to point out that there were such things as public-domain works or authorized sharing of the Wilco album, for example, and anecdotal evidence that you could actually do that.

------

Betamax was upheld. This is not surprising because at no point during any of the proceedings I watched or read transcripts of, did the RIAA ever really argue why this was different, despite being specifically asked to do so by numerous judges.

-------------

The RIAA/MPAA sought to have a summary judgement against Grokster.

JUSTICE GINSBURG: If there's more, they could bring it out at trial, could they not? The difference between your position and Mr. Verrilli, I take it, is that you think there should be not summary judgement for the Petitioners, but a trial.

MR. CLEMENT: I think that's a fair point, Justice Ginsburg.

------

JUSTICE SOUTER: Then why was current -- why was inducement, as a current theory of recovery, even the subject of summary judgement? It seems to me that to make it a summary judgement is implausible to a non-worldly degree.

-------

The RIAA/MPAA didn't get a summary judgement saying "Grokster and Streamcast are guilty as charged and dead meat!"

That's what they asked for. Instead, they got thrown back to the lower courts for a trial.

How this can be perceived as a win for the monopolies is beyond me.

"The RIAA/MPAA didn't get a summary judgement saying "Grokster and Streamcast are guilty as charged and dead meat!"

That's what they asked for. Instead, they got thrown back to the lower courts for a trial."

You don't get a summary judgment from the Supreme Court. The SC laid out the rules and sent it back for the lower court to rule on the case in accordance with the rules laid out by the SC. They also all as much said that Grokster and Streamcast are guilty in accordance with those new rules. It is a virtual certainty that Grokster and Streamcast are going to lose.


"How this can be perceived as a win for the monopolies is beyond me."

I agree with you there. This seems to be a clear victory for P2P to me. I think everyone whining on this board hasn't read the opinion.

"You don't get a summary judgment from the Supreme Court."

"JUSTICE SOUTER: Then why was current -- why was inducement, as a current theory of recovery, even the subject of summary judgement? It seems to me that to make it a summary judgement is implausible to a non-worldly degree."

I don't like Wayne Rosso any more than you do, mroop.

But nobody won. They said that it's okay to sue Grokster and their ilk, but it's going to have to be on a case-by-case basis and involve proving intent, whether they actually said that last part or not.

"They also all as much said that Grokster and Streamcast are guilty in accordance with those new rules. It is a virtual certainty that Grokster and Streamcast are going to lose."

But now it doesn't matter because the game has changed.

What the RIAA wanted was for file-sharing to be declared illegal, in toto, which would have the side effect of also shutting down things like the Internet Archive and NASA's shared knowledge.

They didn't get that. They did get permission to go after the Rossos and Kazaas, individually, based on intent, motive and evidence of inducement to infringe on copyrights.

P2P itself, as a technology, won. The Supreme Court has told the p2p software companies to start filtering out the RIAA or else be liable.

I do not see a down side.

I agree if indeed P2P starts filtering out RIAA content that would be a good thing. At least then you could download material, without risking being sued.

THis should be a boom to the Indie artist. Hopefully the RIAA would be hurt more by disappearing from P2P, then they are really going to have to sell their material without the free publicity offered on P2P.

Now if we could only get the Radio stations to stop playing this stuff. I don't understand why they are prepared to pay a Fee to give exposure to this RIAA artist.

I for one would not miss them if they totally disappeared.

"The Supreme Court has told the p2p software companies to start filtering out the RIAA or else be liable."

You were right up until this part. They said exactly the opposite. This is a comment from Tom's roundtable link above:

James Burger (3:14 p.m.)

In that vein, I was particularly gratified by the Court's treatment of the business model and affirmative acts to prevent infringement. The opinion references those only as confirming the other evidence demonstrating that the respondents principle objective was to induce infringement. Indeed, footnote 12 states that "in the absence of other evidence of intent, a court would be unable to find contributory infringement merely based on a failure to take affirmative steps to prevent infringement...."

John Palfrey (3:20 p.m.) Yes -- lawyers love a good footnote, and footnote 12 is a great one.

"P2P itself, as a technology, won."

I agree with this. It looks like a victory for P2P to me.

arrrr, those be some fairly large words, and we'd be simple pirates. all I can say is that I've had nine offers to buy in so far... damn, I was only kidding too!