Posted on 01/25/2005 6:27:22 PM PST by PDR
WASHINGTON, Jan. 25 (UPI) -- The U.S. Supreme Court is faced with the challenge of threading a very thorny needle now that the initial round of briefs in what has become known as the Grokster case has been submitted.
At issue is a U.S. 9th Circuit Court decision that failed to halt the distribution of peer-to-peer file-sharing programs that, according to some estimates, have been used to circulate millions of copies of pirated movies, songs and computer software.
The Supreme Court is being asked to decide whether the companies that develop or provide peer-to-peer file-sharing programs should be held responsible for copyright infringements committed by the users of their products. The companies that produce content say they should. The providers of the peer-to-peer software, those that maintain file-sharing sites and the companies that manufacture consumer electronics, say they shouldn't.
So far the courts, relying on the 1984 Sony Betamax decision, have said they shouldn't. But, whether they realize it or not, the courts have been comparing apples and oranges because the peer-to-peer programs and sites are neither fish nor fowl.
In the Betamax case the U.S. Supreme Court determined that the developers, manufacturers or providers of a technology that was capable of substantial non-copyright-infringing uses could not be held liable if consumers use that technology in an infringing way.
If MGM vs. Grokster was about whether Fox or NBC/Universal or A&M Records could successfully sue Apple Computer or palmOne because their products -- like the iPod or the Palm Pilot -- were being used to view copy-protected material that had been pirated, then the 9th Circuit probably would be correct in saying that, based on the Betamax ruling, they couldn't. But that's not what this case is about.
More than one peer-to-peer Web site, some of which make money by selling ad space, encourages users to ship copy-protected materials around the Internet under the illusion it is free stuff. In one sense it is the information-technological equivalent of getting a good deal on a piece of merchandise that, in the language of the old neighborhood, "fell off the back of a truck."
It should come as no surprise, therefore, that the folks who make the machines are on one side of the case while the folks who make the content are on the other. It is, for both sides, a matter of great economic interest.
The content manufacturers lose money each time someone uses a peer-to-peer program to send a pirated movie or piece of music to another person via the Internet. On the other hand, that same, seemingly free transfer creates a market for the cutting-edge technologies necessary to view or otherwise take advantage it. Greater demand leads to a higher volume of sales.
On an ethical level, it seems little different than going to a store and purchasing a state-of-the-art sound system in order to listen to hot compact music discs that somebody else shoplifted. The peer-to-peer programs and sites that facilitate or encourage infringement, indeed seem designed just for that purpose, should not be protected under the Betamax standard.
Who gets hurt? The content manufacturers, for one. Few people realize that cultural materials are among the United States' leading exports. The United States dominates the world market for movies and music, making it -- for good or for bad -- a cultural as well as economic and military superpower. The programs and Web sites that encourage, whether actively or tacitly, an infringing peer-to-peer exchange cause economic harm to one of the nation's leading industries. The fact that each transaction may constitute the loss of pennies must be seen in the context of how quickly those pennies add up when the Internet, with its global, exponential reach, is involved.
What is not as obvious but is no less real is the economic harm the machine manufacturers will, in the long run, also experience. If the abundance of quality content, legal and otherwise, drives the development and sale of new devices, than a decline in quality or availability will lead to a decline in the demand for new devices needed to enjoy that content.
The solution, however, is not to ban peer-to-peer technology, as some have suggested; the solution is to go after those whose business models depend on its use to infringe on someone else's copyright.
The peer-to-peer folks have cleverly pitted the content end and the component end against each other while finding safe harbor in the middle. The component manufacturers and the content developers should realize the need exists for them to strike a delicate balance. A DVD is no good without a way to view it; a blank screen is not the most entertaining thing to stare at for 90 minutes. Each needs the other to survive and to thrive.
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(The Peter Principles explores issues in national and local politics, U.S. culture and the media. It is written by Peter Roff, UPI political analyst and 20-year veteran of the Washington scene. Please send comments to nationaldesk@upi.com.
I got my popcorn. Gonna sit back and watch this thread.
I'll join you.
It really comes down to whether when the consumer buys the DVD, or music do they own that copy and can do with it as they like for personal use. Or does the consumer just rent the content and is buying the media?
I will watch what the court does because if they side with the RIAA and others then most of the technology from Apple to the PC's we are typing on today contain illegal hardware and programs making the companies liable.
the technology products you describe have, as the Betamax case said, substantial non-infringing uses... that is why this is apples and oranges. When you buy a DVD you are -- n effect -- licensing the material contained on it for personal use. You are, as a practical matter, not permitted to make a business out of redistributing that material to other people -- for free or for gain, which is what the exchange of files is effectvely -- at the expense of the true owner of the copy protected materials.
False. If it weren't free, many viewers/listeners would not get the content at all. To say otherwise is to ignore basic economics, supply and demand.
No. True. The exchange deprives the content makers of the revenue due them as owners of the material... whether that material would be purchased if not available for free (as it likely would be in more than a few instances) is irrelevent. What you are suggesting is that it is okay to steal something if you wouldn't but it in the marketplace because -- otherwise -- it would sit on the shelf unsold and, either way, the company doesn't realize a return on the item.
I'm not at all saying it's ok - don't impute. I am saying that there is a segment of people that will not spend money on things that they would view/listen to if they could get it free. In these cases, no money would go to the content authors and you can't lose money that doesn't exist.
If you doing it for free then how can it be a business?
Confusing article. Hardware manufacturers should not be confused with P2P site owners and users. And content creators should not be confused with the RIAA and MPAA.
to follow that forward then, and i do not as a practical matter accept the logic of your example, the existance of the kind of people you describe distort the behavior of the marketplace, thus it would be irrational for the content providers to continue in business -- markets, remember, are ratonal.
This is untrue. They may lose what would have been a sale, but they do not lose money. Potential money is not real money.
Let's look at "potential" money. Say if Jake steals next week's lottery ticket from Sam, could Sam sue for the jackpot -- or just for the purchase price? If we use "potential sale" theory the value stolen is the whole of the jackpot.
there is still a transaction involved... no money changes hands but items of value are exchanged
as to your first point only, the consumer electronics folks have sided with the p2p folks... that may be what has confused the issue
But 'exchange' requires you to get something in return, which is not the case.
not if it is a losing ticket
If I am "licensing the material contained on it for personal use" then making a backup copy for my personal use, or transferring that material to a portable player for my personal use, should be non-infringing usages by definition. Unfortunately, that has not yet been legally established.
No, it would just be irrational for them to continue to do business in the assinine way they currently do.
It also needs to be said that if you apply the **AA's logic in other scenarios, real problems start popping up. For example, should firearm manufacturers be prosecuted each time somebody uses a gun in an illegal manner? Their products have both legal and illegal uses. It's up to the product user, not the manufacturer to bear the responsibility for illegal use.
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