There is something that has always made me feel uncomfortable with application of the the Sony Beta-max defense wrt the litigation of P2P software.  Sony was selling a device and medium. A direct comparison with software transferring data over the internet is not strictly correct.

When you create software that runs on the Internet that allows people to download media – this is closer to a TV Channel or Cable TV provider and set-top box than a whole new medium.

There are two recognised classes of secondary copyright violation. Contributory copyright infringement and vicarious copyright infringement.

Contributory infringement is “the act of participating in, or contributing to, the infringing acts of another person.” In the copyright context, knowing (or having reason to know) about the copyright infringement and inducing, causing, or materially contributing to the violation constitutes contributory infringement.

Vicarious infringement is “a person’s liability for an infringing act of someone else, even though the person has not directly committed an act of infringement.” For example, a concert theater can be vicariously liable for an infringing performance of a hired band or an swap-meet organiser can be vicariously liable if stall holders are selling pirate CDs.  In order to be held vicariously liable for copyright infringement, the “principal,” must have the ability and right to oversee users’ conduct and enjoy a direct, financial benefit as a result of the wrongful acts.

File distribution systems normally fall under Vicarious infringment. The best argument is the Sony Beta-max defense which requires demonstration that the product in question is capable of substantial or commercially significant non-infringing uses and has only previously been applied successfully to devices – not to distribution channels.

The latest ruling forces the case to be re-examined using a new third type of copyright infringment which has its roots in the “Statue of Anne” and focuses on the concept of inducement and incitement. The argument being – “did the princible intend to profit through the use of their software and induce or incite others to use their software in a matter that would infringe copyright?”

What is at stake is the internet as a viable and egalitarian distribution medium. The ability to link, index and communicate is inherent in the internet – everything else is just an interface, a database or a network optimisation. The comparisons between individual Internet technologies and ‘new’ mediums like piano rolls, cassette tapes and video recorders is not strictly correct so a vast grey area is opened up in the interpretation.

Based on this new angle of examination and the potential for the ‘channel’ interpretation, I’m pretty sure Grokster et. al. are doomed as this places the focus of the case on the grey and dodgy area of the marketing of P2P software.

“This Bong Is Only For Decorative Purposes”

Their only hope is the absence of a smoking gun, but there is an awful lot of shreds of evidence that could be bound together into a noose.

Take a look at Morpheus.com via archive.org and you find blurbs such as “Connect to millions of Kazaa, iMesh, eDonkey, Gnutella, Limewire, and G2*  users to get more results than you have ever experienced!”.

http://web.archive.org/web/20031221193727/http://www.morpheus.com/

“Search, Share, and Download audio, video, images, documents, programs, web, and more!”

http://web.archive.org/web/20040125220648/http://www.morpheus.com/

“The Best Safest And Secure” – Safe from what?

Streamcast and Grokster marketed heavily to ex Napster users. Napster was convicted of copyright violations. The ‘ster’ in Grokster is a mangling of Napster.

And you can’t even research the ruling without getting keyword ads for Grokster like this..

Free Music Anyone?

I would argue that it is the internet itself that is the medium – and that the business model of MGM is now the issue – which brings me back to my original message. They need to make way for the augmented public domain which is sucking away at their profits as surely as the hard vacuum of space. They need to let go and change. In the same way the world will have to change to deal with global warming, they will have to change their business models. The internet is here, done, its already over. They didn’t move fast enough. They will be punished.

To push this any further would be to regulate what kind of software can be run on the internet, and to argue that any program that could be used to create a public index of downloadable files needs to be regulated.

Even if they take down P2P business – P2P is here to stay. This is a clear example of evolution in action. At a certain point P2P is going to be pushed so far underground and be so well thought out and secure that everyone will feel safe using it.

The next generation of media stars are not emerging from the music companies, but from the land of podcasting. MGM and friends are guaranteeing the existence of this free safe alternative.