[Ecommerce] FYI: Comments and links on Grokster and StreamCast's Morpheus in the Filter

[Manon Anne Ress]

Double-edged sword?

  No. 5.8 <--The Filter--> 04.28.03

  Your regular dose of public-interest Internet news and commentary
         from the Berkman Center for Internet & Society at
              H a r v a r d  L a w  S c h o o l



  [1]  IN THE NEWS
                 ================

* Grokster and StreamCast's Morpheus--Betamaxed: In a ruling some
experts worry could turn out to be a double-edged sword, a federal
judge in Los Angeles on Friday found Grokster and StreamCast
Networks not liable for copyright infringement by users of the
companies' peer-to-peer (P2P) file-sharing software. Citing the
Sony Betamax and Napster decisions, Judge Stephen Wilson found that
Grokster and StreamCast do not meet the legal threshold for liability
for contributory or vicarious infringement, and further, "are not
significantly different from companies that sell home video
recorders or copy machines, both of which can be and are used to
infringe copyrights."

<http://shorl.com/gydrimutremaste> [EFF]

<http://news.com.com/2100-1027-998363.html>

<http://www.nytimes.com/2003/04/26/technology/26MUSI.html>

<http://shorl.com/detejylastyny> [Washington Post]

<http://shorl.com/fobrisahaviby> [Boston Globe]

Reaction to the ruling among fair use advocates has been split
between euphoria and caution. On the one hand, said the Electronic
Frontier Foundation's Fred von Lohmann, "someone in a black robe"
has acknowledged that "[when] you make a piece of software and
distribute it to the world, and...have no ability to control what
people do with it, you are in the same shoes as those who manufacture
photocopiers and VCRs." On the other hand, however, concerns remain.
Not only will the decision immediately be appealed, but the ruling
contains language that can be construed as a plea for additional
legislative "guidance" from Congress.

"...Plaintiffs invite this Court to expand existing copyright law
beyond its well-drawn boundaries. As the Supreme Court has observed,
courts must tread lightly in circumstances such as these," wrote
Judge Wilson. "In a case like this, in which Congress has not
plainly marked our course, we must be circumspect in construing the
scope of rights created by a legislative enactment which never
calculated such a calculus of interests."

"Unless this decision is overturned quickly on appeal, the P2P
policy battle will now move to Washington," wrote Princeton computer
science professor Edward Felten in his weblog. "Having lost in the
Courts, the content industry will take the judge's hint and lobby
Congress to pass legislation changing the rules. My prediction is
that we'll see a bill circulated that creates an affirmative
responsibility to design products that make infringement as
difficult as possible."

<http://www.philly.com/mld/philly/business/technology/5717908.htm>

<http://www.freedom-to-tinker.com/archives/000374.html>

* Target Practice: The Grokster/StreamCast decision comes on the
heels of a ruling in RIAA v. Verizon, in which a US District Court
in Washington, D.C. held that Verizon must reveal the identity of a
subscriber whom the Recording Industry Association of America
alleges is using KaZaA file-sharing software to swap copyrighted
material. According to intellectual property attorney Mark Radcliffe,
the two decisions in tandem could presage a shift in the RIAA's
strategy for combating online piracy. "The obvious alternative
[to targeting P2P software providers] is what the record companies
have begun to do: Go after the worst traders," said Radcliffe to
CNET.

According to Berkman Fellow and EFF Staff Attorney Wendy Seltzer,
this spells trouble for people who use P2P file-sharing software.
"[Yesterday's] ruling against Verizon...gave copyright holders broad
leeway to flood ISPs with demands for the identities of alleged
copyright infringers," wrote Seltzer in her weblog. "That decision...
[compromises users'] privacy and anonymity on the mere rubber-stamped
say-so of any copyright claimant."

<http://www.dcd.uscourts.gov/03-ms-0040.pdf>

<http://news.com.com/2100-1027-998419.html>

<http://www.washingtonpost.com/wp-dyn/articles/A33972-2003Apr24.html>

<http://blogs.law.harvard.edu/seltzer/2003/04/25#a22>

-- 
Manon Anne Ress
Consumer Project on Technology
www.cptech.org
PO Box 19367, Washington, DC 20036
manon.ress@cptech.org, voice: 1.202.387.8030, fax: 1.202.234.5176