Home Phone and Internet $60/mo
April 25, 2003 12:46 PM PDT
Judge: File-swapping tools are legal
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In an almost complete reversal of previous victories for the record labels and movie studios, federal court Judge Stephen Wilson ruled that Streamcast--parent of the Morpheus software--and Grokster were not liable for copyright infringements that took place using their software. The ruling does not directly affect Kazaa, software distributed by Sharman Networks, which has also been targeted by the entertainment industry.
"Defendants distribute and support software, the users of which can and do choose to employ it for both lawful and unlawful ends," Wilson wrote in his opinion, released Friday. "Grokster and StreamCast 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."
The ruling is the second major setback to date to the entertainment industry's efforts to keep a tight rein on online file-swapping, following a similiar decision in the Netherlands last year that found that Kazaa was not liable for its users' copyright infringements. If upheld, the decision could lead artists, record labels and movie studios to cast new legal strategies that they have until now been reluctant to try, including bringing lawsuits against individuals who copy unauthorized works over Napster-like networks.
According to the major record labels, file-swapping is a major contributor to declines in music sales over the past few years, a trend that has thrown the industry into disarray. Debt-ridden media conglomerates are now considering sales of their music divisions even as they begin to test paid online music services intended to compete with free file-swapping networks and turn the tide.
Attorneys called the ruling a blow for entertainment and record companies trying to stop the networks used to swap unauthorized copies of their works.
"This is a very serious setback for the record industry and other content industries, because they've uniformly won these cases in the U.S.," Mark Radcliffe, an intellectual property attorney at Gray Cary Ware & Freidenrich said.
While the ruling in no way validates the legality of downloading copyrighted music online, it would shield companies providing decentralized file-swapping software such as Gnutella from liability for the actions of people using their products.
As such, it could provide new leverage for file-swapping companies such as Grokster, Streamcast and Sharman in negotiations with record companies and other copyright holders to license works legitimately. Since Napster's $1 billion settlement offer with the record industry in 2001, file-swapping companies have repeatedly sought an amicable settlement with copyright holders but have been almost universally rebuffed.
The court's ruling applies only to existing versions of the Morpheus and Grokster software. Earlier versions of the software, which functioned slightly differently, could potentially leave the companies open to liability.
A spokeswoman for the Motion Picture Association of America (MPAA) said the copyright holders were deeply disappointed in the decision and would certainly appeal.
"We feel strongly that those who encourage, facilitate and profit from piracy should be held accountable for actions," MPAA spokeswoman Marta Grutka said. "We're hoping that people aren't taking this as an invitation to continue along the path of what is clearly illegal activity."
Recording industry officials said they saw some good in the ruling, but that they too would immediately appeal to the 9th Circuit Court of Appeals.
"We are pleased with the Court's affirmation that individual users are accountable for illegally uploading and downloading copyrighted works off of publicly accessible peer-to-peer networks," said Recording Industry Association of America (RIAA) chief executive officer Hilary Rosen in a statement. "(But) businesses that intentionally facilitate massive piracy should not be able to evade responsibility for their actions."
Wilson's decision comes in the most closely watched Net copyright case since Napster's demise.
The two pieces of file-swapping software affected by Friday's ruling remain among the most popular downloads on the Net, although they operate deep in the shadow of market leader Kazaa. Morpheus--once the undisputed leader--has fallen to about 120,000 downloads per week, according to Download.com, a software aggregation site operated by News.com publisher CNET Networks. Kazaa, by contrast, was downloaded more than 2.7 million times during the past week.
The RIAA and the MPAA sued Streamcast, Grokster, and the original parent company of Kazaa's software in October 2001, and the case has been making its way slowly through court since that time.
In late 2002, both sides asked the judge for summary judgment, or a quick ruling in their favor before going to a full trial. Wilson's decision in favor of the file-swapping companies Friday was tied to that months-old series of requests.
The decision does not directly affect Kazaa, at least not immediately. At the time that Grokster and Streamcast were arguing for summary judgment, Wilson had not yet ruled that the Australia-based Sharman Networks could be sued in the United States.
Sharman is scheduled to meet with RIAA and MPAA attorneys in court on Monday, to argue over whether its counterclaim against the record labels and movie studios should be dismissed. Friday's ruling, however, could change the direction of that hearing.
The judge's surprise ruling marked the first validation of an argument that file-swapping supporters have been making since Napster's first controversial arrival. Peer-to-peer file-trading is a technology that can be used for activities well beyond copyright infringement, and the technology should not be blocked altogether to stop solely its illegal uses, these backers have said.
In making that argument, the judge looked back to the landmark 1984 Supreme Court ruling that upheld the legality of Sony's Betamax videocassette recorder (VCR). That decision helped establish the doctrine of "substantial noninfringing use," which protects technology providers that distribute products--like the VCR or photocopier--that can be used for both legal and illegal purposes.
"We are absolutely very proud of this judge for having the unusual capacity to be able to grasp the technology and its future benefit to taxpayers and shareholders around the world," said Wayne Rosso, president of Grokster. "Technology is usually way ahead of courts and legislature. The fact that judge was able to acutely comprehend (this technology) is a credit to the legal system."
Not like Napster
Much of Wilson's ruling hung on the technological differences between Napster and the newer, decentralized file-swapping services.
Napster's service opened itself to liability for its users' actions by actively playing a role in connecting people who were downloading and uploading songs--a little like a physical swap meet provides the facilities for people exchanging illegal material, the judge said. By contrast, Grokster and Streamcast distributed software to people and had no control over what their users did afterwards, Wilson said.
When users search for and initiate transfers of files using the Grokster client, they do so without any information being transmitted to or through any computers owned or controlled by Grokster," Wilson wrote. "Neither Grokster nor StreamCast provides the site and facilities" for direct infringement. "If either defendant closed their doors and deactivated all computers within their control, users of their products could continue sharing files with little or no interruption."
It didn't matter that the companies were aware generally of copyright infringement happening using their software, Wilson added--they would have to know of specific instances of infringement and be able to do something about it, to be liable for those users' actions.
That stands in stark contrast to an earlier ruling against file-swapping company Aimster, in which the judge explicitly said the file-trading company did not need to know about individual acts of copyright infringement as they were happening to be held liable for the illegal activity.
Friday's decision is likely to send shock waves throughout the copyright and technology communities, which have adjusted slowly over the last year to the notion that file-trading services such as these were mostly likely illegal. Technology companies have complained that the repeated lawsuits have stifled innovation, but many also have begun to move forward in alliances with authorized music--and film-distribution services.
The case will certainly be appealed. Because different courts have come to very different conclusions about the law, the issue could go as high as the U.S. Supreme Court, a process that would likely take years.
"This is far from over," said Fred von Lohmann, an Electronic Frontier Foundation attorney who has represented Streamcast in the case. "This is not the end, but it sends a very strong message to the technology community that the court understands the risk to innovation."
In the interim, the ruling is likely to produce another round of interest in legislation affecting copyright issue on the Net--an outcome that Wilson himself foresaw.
Policy, "as well as history, supports our consistent deference to Congress when major technological innovations alter the market for copyrighted materials," Wilson wrote. "Congress has the constitutional authority and the institutional ability to accommodate fully the raised permutations of competing interests that are inevitably implicated by such new technology...Additional legislative guidance may be well-counseled."
News.com's Lisa Bowman contributed to this report.
and they can send theirs back to me..
I just look at The Programs that upon up a place to where we can have a better volum.
I hope that this thing will be put to rest and just leave the internet alone.
This is not right, when I joined, I was told it is legal to download and upload music from our files which come from our CD's we bought, so if I request a song how am I suppose to know if it is legal or not? After all it's all music. If they don't want us to download a certain song than an warning label should pop up and say "WARNING you are about to download a song that is illeagal Click here to cancell if you continue you can be subject to (Whatever)" & uploads shoud say "Warning a song is about to be uploaded that is against the copy rights of that artist. Please click here to cancell upload and please remove it from your share files."
That ultimately led me to this article and for me to email the NYTimes complaining about what I consider false advertising. It turns out the 100% legal free music is nothing but that file sharing rip off which now they are trying to get you to sign up and pay to use?
I am writing merely to protest these sites and the idea they can be passed off as 100% legal.
Ironically, people like Wayne Shorter lose out on royalties because of these sites. This District Court Judge from California apparently says the service itself is not illegal but what people do with it? That makes little sense and is irrelevant to the question is it legal to use.
Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., --- S.Ct. ----, 2004 WL 2289054, 73 USLW 3247 (U.S. Dec 10, 2004) (NO. 04-480)
So, for all those folks who don't understand, here is an analogy. It's legal to have a VCR, and it's legal to have a VHS Tape, but it's not legal to go rent Shrek on VHS and copy it, take back the original a couple hours later, and have your own VHS copy to enjoy at your leasure. Even high-speed Dubbing VCRs are legal, LOL.
If I had any income at all, I would love to pay a monthly fee to be able to download, or upload, whatever I want, without having to worry about legal issues. Just have the service pay into a big fund from which money is distributed to those poor foolish companies who are apparently suffering so much from the effects of file-swapping, and leave people alone.
And no, having access to a computer and having an email account is not an indication of wealth, or even minimum income. If it did, I wouldn't be typing this right now. LOL
Happy Holidays, and be of good cheer, and all that.
Krepta.
"You agree not to: download or upload any material that:(c)... infringes any third party's intellectual property; or (d)... and You agree that you will not transmit or access any data that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party and agree to indemnify and hold harmless EZMP3s.com from their claims if you do."
In a nutshell, this means that their software is 100% legal, and downloading their software is 100% legal, BUT using the software to download or upload any copyrighted material is STILL ILLEGAL, and punishable by fines or imprisonment or both! If you read all the articles, the music industry is now considering going after the individual users of the software, you & me - since they now may not be able to go after the "Big Guy" sites that provide the means and encourage the copyright infringement. We are reaoly being duped into thinking that we are now paying for the right to download the music. WRONG AGAIN! In the fine print it also states that we are paying for the support of the product(software), & the upkeep of the website. So, in essence, it's legal to download the software, & pay for its support, BUT ILLEGAL TO USE IT! AND YOU AGREE TO INDEMNIFY AND HOLD HARMLESS ("THE WEBSITE".COM)FROM ANY CLAIMS (FINANCIAL & OTHERWISE)IF YOU DO (DOWNLOAD ANY COPYRIGHTED MATERIALS). We'll stand alone, and be 100% accountable for our own actions!
To me it is insane to hold a company responsible for a crime that someone commits with their product when that product isn't intended for such abuse.
Just for the record...I am totally agains copyright infringement and will not be involved in file sharing. But don't kill the company that isn't responsible for an individuale crimes.
Having said that, if they do decide to go after the "file sharing thieves", it is only appropriate that the Huge Conglomerates who give these "thieves" the ability to perform these dastardly deeds be jailed and/or sued as well.
The Companies that produce the Computers - I.B.M., HP, Sony, Dell, Toshiba, Apple, Mac, etc.
The Audio Video guys - Scotch & 3M (Memorex), TDK, Sony, Panasonic, etc.
The Software guys - Napster, Kaza, Grokster, and the other 25 or 30 producers of "file shareware".
All the Corporations are happy because they are making BILLIONS, the poor entertainment world only had more than 3.6 TRILLION (latest estimates for 2004), spent last year alone on a global basis for people of the world to entertain themselves. This figure does not include attendance at concerts of all the different Genres and various artists from all over the world.
The only people crying about the ?tremendous loss of sales?, due to this file sharing theft is of the Greedy American Recording/Movie Industry. The same industry in other nations, is glad to have their work recognized. And when it comes right down to it, if the product were made available to the general public at reasonable prices, maybe the theft would decrease in intensity, and numbers.
Try going to a concert today ? Barbara Streisand - $5,000.00 for a seat, Celene Dione - $4,500 for a seat. People do not pay this for an Audience with the Pope, a visit with The Queen Of England, The President Of The United States, ( well not always ), or other World Dignitaries, just who the HE_ _ do these people think they are ? OH that?s right, they are members in good standing of the entertainment industry is is loosing MILLIONS in sales.
LET?S GET A GRIP ! In the immortal words of Yogi Berra ? ? If it ain?t broke, don?t fix it!? Everybody?s making tons of cash ? leave the file sharing people alone, they are not hurting anyone, business is good all around, and when it comes down to cases, people hear music and they want to go see the performer LIVE !
LIVE & LET LIVE !
john
notice he does not mention that joe public is free from prosocution,which means that joe public will take the fall for the firm who has supplied him with the software. also while joe public takes the fall the firm who supplyed the sofware is making millions. I received a letter of the firm i visited for some music but decided not to bother, there letter said if i was worried
about it being illigal then read what a judge said about it but all it said after reading it was that the firm supplying the soft ware was exempt from prossacution as long as they did not know who was using it.
Its like a gun shop selling someone a gun. The person buying may have a good background record but who knows what there going to do with that gun. If they do something that violates the law the gun shop isnt liable for the persons actions. I think we all know whose liable for whose actions.
In my opintion P2P should continue. Its not the fault of companies that make it possible to share things over these networks. The blame should lay where its been for years - The user. Media companies just have to learn to adapt. In the past there was a such thing as recordable tapes. These in deed got recorded also from copyrighted material. But if one thinks about it there was no way or network to mass dristribute it.
Even if there was no P2P network people will still find ways to share copyrighted material via email, private networks, etc.
What shall the software and multimedia makers do? Well its time to adapt. The old ways of selling material isnt working and cant work anymore efficently. These companies should look into new ways in selling their product. Lower prices and make revenue a different way is probally the best way. I believe the software industry would be the easiest for adaptation. With online registration and activation of software. The media industry will just have to look into new ways. I dont know what to say. Its still going to happen no matter who gets sued and what these companies are sueing for are for all the wrong reasons.
that has made file sharing legal. Los Angeles
isn't even the where the 9th circut is and any
federal judgement would have to be made in San Francisco. On the contrary a judgement was made
in the 6th circut in Nashville and the outcome
was the opposite, artist / publishers need to
be compensated for streaming ie. Performance
exclusive rights; Anyone whose music is on this filesharing site has everyright to issue a cease and desist letter; and if it isn't responded to you can file suit for copyright infringement in
FEDERAL (not state) court.
I downloaded and paid for the software to download movies. Considering I have a cable modem, I thought that the download time would be quick. WRONG!
With a cable modem, my download speed is around 3MB per second (timed by an internet speed check). Using the program to download a movie, it connected at 6K. YES! 6K!!! And the download time was 9 hours!?!?! The download completed, after seven and a half hours.
Now here's what I found out.
A friend of mine was also doing the same thing, downloading movies legally, paying for the sites, etc. Then his cable modem locked up, and it wouldn't connect more than 3K. He contacted the cable company and it seems as though they had an apparent "block" on certain sites and/or downloading files over a certain size. He had to ask cable to "unblock" his modem, which they did, and he hasn't had a problem since. I'm wondering if this is a consistent problem showing up.
If internet based companies like "ezmp3s.com" or "downloadshield.com" are giving people the opportunities to pay for the software and download files legally, why are the cable companies having such a difficulty with it?
I mean, if it's legal, it should work. Right?
I've been a subscriber to Rhapsody thru Optimum Online for the past few years. One of the things I had been hoping for is to see newer music there. But, the "newest" music that shows up is usually around 3-4 months old, or shows up "unavailable for listening or downloading". However it may contain a lot of older pressings like what you're looking for.
Of course, you'd have to download the software, register, etc. Then, you'd have to pay for each track that you want to burn (I think it's $.99 for new tracks and $.69 for older tracks). Plus, you can set up a playlist to listen online as well. And I can guarantee you, that the songs are in CD-quality sound.
Hope this helps.
After that,In order to reduce illegal file sharing.Here are some method to reduce the share,however, it is impossible to reduce to zero .
The copyright holders should
1. Set different permissions for different kind of consumers around the world. The holders can use different price tag to sell their products.
2. Make a special lock on copyrighted files, consumer who downloads it from these File-swapping tools have to pay coins to get a key to unlock the files.
3. Arrange some events for consumers to look how their artists work with their album, After that the problem will deduced tend to zero.
The music industry finds itself in the same situation that the movie industry found itself in during the early 1980s. A piece of technology came along and threatened their sales and their industry. Do buggy whips and automobiles sound familiar to anyone? The introduction of affordable VCRs and tapes drew the same reaction from the movie industry and later the affordability of satellites drew a reaction from HBO and Showtime as has in the music industry. The key for the music industry is to compete with the technology or encrypt their property or die. It really is that simple. Today the big bad music industry can?t sue a company for providing a software program that allows a person to conduct both legal and illegal downloading. Look at a car manufacture that sells 100,000 cars in the US. They can be assured that during that same year a percentage will be used illegally, i.e. drunk driving, selling illegal drugs, robbing a bank or store of some kind. But who? There is no way to know and therefore no way to hold the seller of the car liable. The companies that provide the software that enables people to share files are not conducting an illegal act and therefore cannot be held liable. The Judge has it right ? these companies that provide file-sharing software can close up shop right this minute and the legal and illegal downloads will continue. But here is my question to someone who is more intelligent then I am ? I can go to a public library and check out a copyrighted book. I pay nothing or little for that right and I keep it for a time using up the intellectual property inside that book. How is this different then file sharing? As long as I am not making money on the downloaded file am I not simply borrowing your song? Further if I listen to a song on a radio am I still not consuming the intellectual copyrighted material? How is this legal but file sharing is not. I have a message to the music industry - develop technology like the satellite programmers did and block content or your industry will die. You can sue children for downloading your copyrighted song but the public will get tired of this fast and ultimately you may find plenty of artists with songs and nowhere to sell them.
- somethings got to give
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by MamaBelladonna
January 29, 2006 3:46 PM PST
- I dont have much sympathy for the industry, as an average family with 4 kids in today economy who can always afford the movies and cd's, It rediculius how much money entertainers make, 5,6,8 million a movie? come on. somethings got to give. the people Who deserve more money dont get get it nurses, firemen, police teachers etc.(I'M a nurse) and we work hard for that money, I used to work 12 Hour in a ER without breaks sometimes B/C we were so busy!
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