Grokster

Some links, articles and the like to ponder while Grokster is argued before the Supreme Court. Updates available on SCOTUSBlog: "Court conflicted over file-swapping".

Andrew is Going Grokster. Furdlog also has a good roundup of articles.

An exceprt from the NYTimes editorial, When David Steals Goliath's Music:

The founders wrote copyright protections into the Constitution because they believed that they were necessary for progress. Movies, music and books require investments of money and time. If their creators cannot make money from them, many will be unwilling or unable to keep producing. Or they may have to finance their work in troubling ways, like by building in product placements or taking money from donors with agendas.

Grokster’s supporters are justified in worrying that if the courts are too quick to rein in new technology, innovation can be stifled. They are also right to point out that copyright has sometimes been given too much protection, notably in the Copyright Term Extension Act, which gratuitously added 20 years to existing copyrights. But these concerns do not erase the continuing importance of intellectual property, which is unquestionably under assault.

Both the court and Congress should be sensitive to evolving technologies. But they should not let technology evolve in a way that deprives people who create of the ability to be paid for their work.

Ernest says they blew it and Larry Lessig says it was "insanely poor".

I actually agree with the above statements - I just don't think Grokster needs to be overturned to achieve this. Indeed, this is exactly what the Betamax standard attempts to protect. As Justice Stevens said in the Betamax majority decision, there must be

... a balance between a copyright holder's legitimate demand for effective - not merely symbolic - protection of the statutory monopoly, and the rights of others freely to engage in substantially unrelated areas of commerce. Accordingly, the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses....

Copyright is, or should be, an attempt to balance the rights of the author and the consumer. The DMCA and term extensions already tipped the scales in the favor of the authors; reversing the Betamax standard would further disrupt this balance.

Dave Winer breaks with EFF [via Scoble]. He says "[t]he issue appears to be copyright, and it appears that the EFF believes there should be no copyright." I'm not really sure that's what they believe or how he arrived at that conclusion, but it's good to see that he understands that copyright does indeed have a place in the digital era. The EFF explicitly addressed this in the introduction of their brief, saying that copyright "involves a difficult balance between the interests of authors . . . in the control and exploitation of their writings . . . on the one hand, and society’s competing interest in the free flow of ideas, information and commerce, on the other hand." (quoting Eldred v. Ashcroft, 537 U.S. at 429).

I also like this piece of irony via furd:

Regardless of the outcome, it still won’t be legal to download copyrighted materials over the Internet without permission, though tens of millions of computer users do so each day. And any ruling won’t affect thousands of copyright lawsuits filed individually against Internet users caught sharing music and movies online.

[…] Theodore Olson, the former U.S. solicitor general hired by the entertainment companies, said the threshold for liability “is so high that basically if there’s any conceivable legitimate use of the system it passes the test. That standard has got to be rejected.”

Olson’s former law firm represented Sony in the 1984 case.

Download all the Grokster briefs via BitTorrent.

As a reminder, Andrew, Chris and I will be attending the inaugural CopyNight at tonight.