Court: File-Sharing Services May Be Sued

ap ^ | 6/26/05 | HOPE YEN

[mathprof]

Internet file-sharing services will be held responsible if they intend for their customers to use software primarily to swap songs and movies illegally, the Supreme Court ruled Monday, rejecting warnings that the lawsuits will stunt growth of cool tech gadgets such as the next iPod.

The unanimous decision sends the case back to lower court, which had ruled in favor of file-sharing services Grokster Ltd. and StreamCast Networks Inc. on the grounds that the companies couldn't be sued. The justices said there was enough evidence of unlawful intent for the case to go to trial.

File-sharing services shouldn't get a free pass on bad behavior, justices said.

"We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by the clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties," Justice David H. Souter wrote for the court.

At issue was whether the file-sharing services should be held liable even if they have no direct control over what millions of online users are doing with the software they provide for free. As much as 90 percent of songs and movies copied on the file-sharing networks are downloaded illegally, according to music industry filings.

The entertainment industry said it needed protection against the billions of dollars in revenue they lose to illegal swapping. Consumer groups worried that expanded liability will stifle the technology revolution of the last two decades that brought video cassette recorders, MP3 players and Apple's iPod.

[kpp_kpp]

saw this over on slashdot

".. which means that Hollywood should be liable for promoting the use of guns for killing people whenever they show guns being used for killing people .."

it's a stretch (as are most slashdot postings) but kinda funny to consider.

[jayef]

They did it for the artists.

[CFC__VRWC]

To the best of my knowledge, FR's use of copyrighted material falls under "fair use", and is generally only excerpted when copyright issues are involved and links to the source are provided. This is not even close to being a similar issue.

But for how long? Seems to me the next logical step from here is to start whacking away at "fair use", with the eventual goal of eliminating it entirely. I'll bet RIAA and other media group attorneys are already drafting the round of suits that will take it down.

[TChris]

"We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by the clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties," Justice David H. Souter wrote for the court.

Oh fer cryin' out loud, people! Why do so many wail about what they fear the court did, rather than what it did? Only those products and services produced with the "object of promoting its use to infringe copyright" are in trouble. The burden is on the plaintiff to prove that this is the object of the producer, to foster infringement.

It seems some strongly-worded warnings and/or a "user agreement" window during installation which forbids the use of the program for illegal purposes would defend against this nicely. All the producers have to do is provide some good evidence that they are not actively promoting the illegal activity, and are, in fact, discouraging such use. That should keep them in business and out of hot water.

[CedarDave]

"Fair use" with regard to print media involves commenting, including political commentary, on the content of an article, even one copyrighted. The copyright act allows use of articles for that purpose. The problem FR had was posting articles in their entirety for this purpose. Jim solved that by requiring excerpts only be posted for publications that complained to him, and the court approved that to settle the Washington Post/LA times lawsuit.

This use is completely different than downloading music or videos without paying for it. I'd be hard pressed to defend that practice under any reading of "fair use".

However, the problem with excerpts is that the entirety of the original article can later be removed or altered by the originating publication and you can't prove otherwise without some reference to the orginal, though Lexus-Nexius (sp) may provide the orginal with a fee.

[N3WBI3]

I would think this would have been solved by all those stupid suits against gun makers... This is moronic, file sharing is copyright indipendant, its the user not the software that causes the probelm..

[kpp_kpp]

if this ruling is taken to its logical extreme, anyone who writes software for two computers to communicate to each other could be held liable if that software is used to transfer copyrighted material.

i know that is not what the court said, the court said "intent" -- but don't think that businesses are not going to use this ruling to bully others.

this in combination with our loss of private property rights, the loss of free speech under the campaign laws, the extention of copyrights and their new application under DCMA ... i don't even recognize the country i grew up in and i'm not that old.

i can no longer laugh at the tin-foil-hat types.

[CedarDave]

See my #125.

[N3WBI3]

The court was essentially reaffirming that theft is illegal. Theft of intellectual property is as real as theft of property, even though many FEEL they have the right to intellectual theft.

and a law punishing gun makers because people shoot eachother would be an act against murder?

[snowsislander]

All the producers have to do is provide some good evidence that they are not actively promoting the illegal activity, and are, in fact, discouraging such use. That should keep them in business and out of hot water.

This ruling certainly provides more than enough grounds for legal harassment of even the most innocent activity. And fighting legal battles is not something small companies want to spend their money on, generally speaking. Even if you are in the right, paying for the lawyers can be a big drain for small operations.

[zook]

Am I not seeing some obvious wiggle room for these software makers when I read "...if they intend for their customers to use software primarily to swap songs and movies illegally"?

Do they not simply need to include some language insisting that their product is intended for legal uses only?

I'm still using Kazaa, by the way, for all kinds of things! : )

[zook]

Make that "kazaa lite."

[SOSCEO]

They swap music files, we swap news stories

Yes, I agree that in theory the two are similar but only in that they are machine readable "files". Music files however, are created from something that was initially purchased legally in some way pursuant to basic "shrink wrap" licensing restrictions.

Now if FR scanned entire newspaper or magazine articles and posted the actual scans on line, the intent would be to deny the newspaper sales of physical units because you could get them for free. The courts ruling focuses on intent, and if anything FR, Drudge and others respect this already. For example, if the NYT wants you to register to see the content, FR does not provide a way around this. It may show an excerpt of a headline or paragraph from the NYT, but if you want to read the whole story, you have to register.

[Dominic Harr]

This use is completely different than downloading music or videos without paying for it.

Again, I'm sorry to say I don't agree. 'Fair use' has not protected us in the courts so far, forcing us to 'excerpt', as you mentioned. Which is a loss for us, for the reasons you've said.

We have to excerpt the folks who have already sued us. This ruling gives aid and comfort to others who would wish to similarly follow 'suit' -- so to speak.

The only detail left is what kind of 'evidence' would FR have to supply to "prove" they aren't supportive of those of us who illegally post articles.

[Dominic Harr]

For example, if the NYT wants you to register to see the content, FR does not provide a way around this.

Actually, yes it does. It's just that FR, after having been faced with a lawsuit just like the one in question, settled and agreed to *try* and police itself.

But some NYT articles still slip thru the cracks.

And that still doesn't address the dozens (hundreds?) of other news sites we post from who have not yet gotten around to suing FR -- FR does still provide a way to "steal" those articles. And we do it every day.

I respect you trying to give the court the benefit of the doubt, but I do not agree with your assesment on this.

[CedarDave]

Kristol got into it with Brit yesterday over Rove's comments last week. See here:

http://www.freerepublic.com/focus/f-news/1430875/posts?page=162#162

[snowsislander]

The unanimous decision is now available here.

For what it is worth, this one might interest folks using broadband access to the Internet.

[CedarDave]

I'll agree with you when the copyright act is declared unconstitutional by the SCOTUS.

(for those unfamilar with "fair use", do a Google search. One reference here: http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-a.html)

[CFC__VRWC]

This use is completely different than downloading music or videos without paying for it. I'd be hard pressed to defend that practice under any reading of "fair use".

I'm with you on that point, but what if, say, the New York Times makes the argument that posting even excerpts of their material is denying them advertising revenue because people are only reading the excerpt here on FR and not clicking through to the NYT web site to read the rest of the article? I do that all the time - hell, we even tell each other in the threads not to go to the web site so they won't get the hits! Besides, most of the time it's not even necessary to read an entire article, as most of the major points are made in the first couple of paragraphs that are included in the excerpt.

And what about people who do click through to the NYT web site and dig out another excerpt further down in the story and post it here. Thus keeping (theoretically) hundreds more people from hitting their site and increasing their ad revenues? I don't know about this, but it seems obvious that clever corporate attorneys could make all kinds of creative arguments along these lines that will have the effect of making "fair use" essentially meaningless, using this decision as a model. And in this age of slumping revenues for media outlets as more and more people clue into their bias and tune them out, you have to believe they'll be looking at any way they can to maximize what is coming in (not to mention, if they can shut down sites such as this one in the process, they wouldn't exactly lose any sleep over it).

And back to music and video swapping, how will this affect legal music downloading services? Example - I've probably spent close to a couple of hundred dollars downloading music from Apple's iTunes. Let's say a friend likes a track I've purchased, and I give him a copy of the file so he can listen to it on his iPod or PC. Can Apple now be sued, on the grounds that they're responsible for any misuse of the files? We used to do this all the time, BTW - making tapes of LPs and/or CDs to share with friends. But if the RIAA can come after Apple or Napster or any other legal downloading service because some people will give purchased tracks away, how long will it be before these services go away?

And then we're right back to one of the major things that started the entire file swapping phenomenon anyway, paying $25 for CDs that have two tunes worth listening to and 13 tracks of junk.

[SevenofNine]

I think entire US Supreme court need retired
TIRED OLD Fart they probably can't tell downloaded from their elbow

MORONS