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April 4, 2005 2:44 PM   Subscribe

Help Save P2P! The United States Supreme Court is currently considering the legality of peer-to-peer file sharing programs in a case called MGM v. Grokster. Rumor has it that the Justices have set up a computer, in the court, with Grokster on it. If you have legal P2P files to share, blogger Death in the Afternoon suggests that you move them to Grokster immediately, as this might help convince the Justices that P2P is good for more than just illegal filesharing. (If you doubt that, think Diebold). If you don't have any legal files, you can get some here. (More inside).
posted by gd779 (42 comments total)

 
In Napster, the Judge is reputed to have been strongly influenced by just *five* illegal Madonna mp3 files found on the hard drive of Napster's CEO. In Eldred, attorney Larry Lessig has said that he lost the case because he failed to convince the Justices that copyright was important. In this case, if we can help the Supreme Court see that P2P is important for more than just illegal file sharing, they're much more likely to find it legal.

As Death in the Afternoon puts it:

Remember, Groskter is not about whether or not uploading a music file ripped from a copyrighted CD onto Groskter (or downloading it therefrom) constitutes infringement. The case is about whether or not Groskter can held liable for contributory infringement. If the Supreme Court believes that Groskter is only being used to share copyrighted files, which are mostly pop music, the Court may have a hard time caring whether or not Groskter gets shut down. But Peer-to-peer technology can be harnessed for so much more. Anybody who followed the Diebold case knows this. If we can make the files that are being shared some how of interest to the Court we might be able to demonstrate Groskter's potential.
posted by gd779 at 2:45 PM on April 4, 2005


If you're anything like me, by the way, the problem isn't that you don't have legal files to share, it's that you're using another P2P network. The point of this campaign is to make sure that Grokster doesn't lose their case, damaging all P2P, simply because the "thought leaders" had put their files mostly on another network.
posted by gd779 at 2:49 PM on April 4, 2005


Wow, you can ban a set of instructions?
posted by Mean Mr. Bucket at 2:49 PM on April 4, 2005


No. And to hell with them if they think they can.
posted by sonofsamiam at 2:55 PM on April 4, 2005


Wow, you can ban a set of instructions?

No, but you can hold the creator of the P2P program or owner of the P2P server liable for contributory copyright infringement and shut them down, which is functionally the same thing (for people in the U.S. at least).
posted by gd779 at 2:57 PM on April 4, 2005


what network(s) does Grokster use? I could google it, sure, but someone must know off the top of their head.
posted by Mayor Curley at 2:57 PM on April 4, 2005


I find this phoney cyberactivism very strange. Most stuff on P2P is pirated material. Period. By sharing a few legal files that won't convince any judge.

P2P won't disappear - nor matter how many laws they release. And tougher measures will only result in ever sneaker and smarter P2P software.
posted by homodigitalis at 3:08 PM on April 4, 2005


I just think it's a riot that anyone thinks, for even a second, that you can legislate against file sharing.

internet = file sharing
posted by Witty at 3:11 PM on April 4, 2005


The point of this campaign is to make sure that Grokster doesn't lose their case, damaging all P2P, simply because the "thought leaders" had put their files mostly on another network.

Does it really damage P2P generally if this specific case is lost? If we need to get on there right now just to put "legitimate" files on it to influence the decision, doesn't that say something about Grokster?
posted by me & my monkey at 3:12 PM on April 4, 2005


Grokster seems to use the Fasttrack network. Which is bad, because people seem to have been leaving Fasttrack in droves recently, so it's not clear how representative the remaining users will be with regard to legality of files.

homodigitalis, the point isn't to convince the judges that P2P isn't mostly used for copyrighted files. Such files will continue to be illegal in either case. It's to convince the judges that P2P has substantial non-infringing uses, so that the technology itself isn't made illegal. When Napster died, I lost my ability to get the latest Madonna CD (which I never wanted); I also lost my ability (until the next network came along) to get rare Groucho Marx radio programs from the public domain. Like the VCR, the point isn't that it will be used for illegal purposes (it will), it's that the costs of making the technology illegal (to free speech, democracy, and the public domain) are greater than the benefits (in terms of copyright enforcement).
posted by gd779 at 3:14 PM on April 4, 2005


Most stuff on P2P is pirated material. Period. By sharing a few legal files that won't convince any judge.

Isn't the betamax standard "significant non-infringing uses"? It seems that you wouldn't need to flood the networks to the point that the majority of their contents are non-infringing; you would just need to make sure that there is a "significant" number of non-infringing files available. In this context, I could imagine a judge being convinced by the volume of material that this sort of cyberactivism could produce. It's conceivable, at least.
posted by mr_roboto at 3:14 PM on April 4, 2005


Er, substantial non-infringing uses, I guess. It that a stronger or a weaker standard that "significant"? I'd say weaker....
posted by mr_roboto at 3:17 PM on April 4, 2005


This is sort of like a protest rally. The point is not to deny that most file sharing is illegal (because, honestly, we all know is); the point is to get everybody showing up in one place at the same time, a place where we know the judges will be. The point is to show those Judges that there's a lot more going on than just illegal file sharing, and that the legal aspects of P2P matter to a lot of people. With luck the judges will care enough to protect the technology as a whole.

And while P2P programs might just go overseas or underground if Grokster loses, the cost to the U.S. in terms of legal innovation would be significant.
posted by gd779 at 3:24 PM on April 4, 2005


gd779 writes " No, but you can hold the creator of the P2P program or owner of the P2P server liable for contributory copyright infringement and shut them down, which is functionally the same thing (for people in the U.S. at least)."


What's a P2P server? When I am running BitTorrent I believe I am both a client and a server - or you may be talking about the trackers, a damned difficult thing to bring down. People should stop trying to play catch with the media companies in the companies own turf, where they all but own the politics and the law enforcement agencies and move elsewhere - let the United States authorities try to build their very own Great Firewall of China for a change.

People should also remember what happened to P2P when Napster was shut down - nothing: people spent sometime contemplating that minor inconvenience, some weeks or months passed in which one couldn't "get rare Groucho Marx radio programs from the public domain" and then everybody moved along to the next network. Why is this any different?
posted by nkyad at 3:25 PM on April 4, 2005


I'll join in, though I don't know how much good it'll do. If the hucksters running the trial search for "Britney Spears", "Madonna", "Sin City" and not "Declaration of Independence" you won't show up.
posted by substrate at 3:28 PM on April 4, 2005


So if Grokster (a P2P I've never used) is found to be illegal, then all of the other P2P apps are, by extension, illegal too?

I'm not sure but that seems like an overly sweeping indictment against a whole class of software.

It doesn't matter though, part of the fundamental nature of the internet is the capacity to share files, pics, stories and more. They might as well try to stop Niagara Falls from flowing (which has happened once and not because of some blowhards in Washington).
posted by fenriq at 3:33 PM on April 4, 2005


People should also remember what happened to P2P when Napster was shut down - nothing: people spent sometime contemplating that minor inconvenience, some weeks or months passed in which one couldn't "get rare Groucho Marx radio programs from the public domain" and then everybody moved along to the next network.

You have a strangely high threshold for what constitutes "nothing." Is that like the old math joke that "the square root of 3 is greater than or equal to 2, for sufficiently large values of 3?"

Why is this any different?

It's not. Wouldn't it be nice if you didn't have to keep moving from network to network every so often?
posted by DevilsAdvocate at 3:35 PM on April 4, 2005


light and heat, but no mass. eventually the greedmeisters will have to accept that unregulatable distribution of digital information is a reality that cannot be denied. they may as well attempt to regulate the sun, stars and moon. which i beleive has also been tried in the past.
posted by quonsar at 3:42 PM on April 4, 2005


Does it really damage P2P generally if this specific case is lost?
...
So if Grokster (a P2P I've never used) is found to be illegal, then all of the other P2P apps are, by extension, illegal too?

I'm more of a CDT guy than an EFF guy, but it's pretty easy to see that this could break pretty badly.

The court seems to want to develop a new test. Trying to tell apart how much non-infringing use a nascent technology can bring is not easy. If the test is large enough, then some of the Bad Things the "copyfighters" portend may actually happen.
posted by allan at 3:46 PM on April 4, 2005


So if Grokster (a P2P I've never used) is found to be illegal, then all of the other P2P apps are, by extension, illegal too? I'm not sure but that seems like an overly sweeping indictment against a whole class of software.

Yeah, but that's the way the law works. We probably won't have another Supreme Court case on this issue for a good long time, and so the lower courts will be forced to apply the Supreme Court's reasoning to any new P2P technology that they see. And the courts are not exactly technology-aware to begin with; getting them to understand the (to them) minute distinctions between one P2P program and another is difficult. Even the Napster case was only a Court of Appeals decision - a decision by the Supreme Court will be much more powerful. Even the most technology friendly courts might feel like their hands were tied by the SC's ruling.

Don't underestimate the importance of the Supreme Court in shaping the law for years to come.
posted by gd779 at 3:48 PM on April 4, 2005


DevilsAdvocate writes " You have a strangely high threshold for what constitutes 'nothing.'"

What I mean is that Britney's latest and greatest masterpiece, Star Wars Episode III and "rare Groucho Marx radio programs" are not essential to anyone. I get all my essential files through such lame channels as CDs, email and good old paper - I don't need a P2P network in place to do my work or to have fun. It is good have, but not having it is a " minor inconvenience".

"Wouldn't it be nice if you didn't have to keep moving from network to network every so often?"

And it would be still nicer if people would let the programmers alone and go after whoever they think has their money. The toolmaker should not be responsible for all uses people have for his/her tool.
posted by nkyad at 3:52 PM on April 4, 2005


And it would be still nicer if people would let the programmers alone and go after whoever they think has their money. The toolmaker should not be responsible for all uses people have for his/her tool.

That is exactly what the Grokster case is about!

I get all my essential files through such lame channels as CDs, email and good old paper - I don't need a P2P network in place to do my work or to have fun. It is good have, but not having it is a " minor inconvenience".

P2P programs can be more essential in nations with strict censorship regimes (such as China), but many of the world's best programmers are based in the United States. If they can't legally develop and release P2P programs, for fear of being sued and losing all their money, the U.S. won't be the only nation affected.
posted by gd779 at 3:55 PM on April 4, 2005


The toolmaker should not be responsible for all uses people have for his/her tool. [emph. mine]

Which is precisely the point here!!! If the court finds that some people are using Grokster for copyright-infringing purposes, but many are using it for legitimate purposes, then the court will likely hold that the fact that some people are using it for illegal purposes does not mean that the toolmaker should be held accountable for those uses. If all, or almost all people using Grokster are using it illegally, the toolmaker likely will be held responsible.

The plumbing supplier should not be held responsible if a pipe bomb made from his pipe kills someone. The person selling pre-assembled pipe bombs may well be held responsible--even if he can point to one or two people using them for legitimate purposes.
posted by DevilsAdvocate at 4:00 PM on April 4, 2005


Well, I'll tell you, if a certain type of pipe is used, 99.5% of the time, to make a pipe bomb, I assure you that type of pipe would be pulled off the market.
posted by sexymofo at 4:19 PM on April 4, 2005


I don't know if SCOTUS actually has a computer set up in chambers with Grokster on it, but I highly doubt this will have any effect. The Justices aren't idiots and their decision will most likely not be based on the percentage of legal files found on Grokster, but rather a broader, more theoretically grounded test. Also, Grokster is only the name of the first appellee, there are a lot of other groups on the bill, which also points to why the Justices would not solely rely on looking at Grokster. Finally, even if the Justices are moldy oldies, their clerks are decidedly not and a good number will be very tech-savvy, so they would surely catch on to any subterfuge on the part of P2P users.

Maybe we should start a chain letter to garner signatures, that would be equally effective.

Also, the Constitution doesn't mention P2P networks, so Justice Thomas is out.
posted by Falconetti at 5:49 PM on April 4, 2005


Qonsar, P2P can and will be defeated.

You only need to look at the 100-year copyright extensions, or the current bankruptcy bill, to realize that when real or alleged consumer interests come up against the concerted might of a significant section of the business community, the business community wins.

There are multiple strategies to be followed. They include expanding the RIAA and MPAA lawsuits into criminal actions and civil forfeitures (the way DVD and CD physical media piracies are prosecuted), explusions and denials of financial aid to students who misuse university networks, direct mandates to the ten companies which provide 95% or more of the consumer broadband connections in this country to block media transmission to or from anything but approved sites, or an automatic royalty system with a rebutable presumption (i.e., you pay $x per megabyte downloaded unless you can prove that the content was licensed to you in another fashion).

I predict that in five years the U.S. marketshare for pirated digital music and movies will be no more substantial than the market share for pirated physical media books, CDs and DVDs -- low single digits at best.
posted by MattD at 6:04 PM on April 4, 2005


gd779: The whole Betamax thing was VERY different IMHO. Have you ever tried to make a thousand copies of a videotape for your best friends, family, your hometown, some guy in Finnland and the rest of the world AND send them around?!

I think there is a huge difference between an 'non-networked' TiVo/VCR and almost all P2P systems. I don't see the fair & personal use of 'recorded' content, when a small nifty program allows distribution to thousands of people.

There are several sites and digital libraries that can be used to store and share 'free' content.
posted by homodigitalis at 6:21 PM on April 4, 2005


Another rumor floating around is that Ginsberg and Scalia have ruled Clay Aiken to truly be America's Sweetheart and Thomas and O'Connor feel "Mannequin 2" lost a lot of the magic of the orignal. Rehnquist contends that Doom 3 i5 OMFG teh R0xx0r!!
posted by zardoz at 6:25 PM on April 4, 2005


I agree with MattD about how nasty this could be for the internet As We Know It. Lawrence Lessig's book Code has a very enlightening and extensive dialouge about the relationship between communication architectures, business and government interests, and legal code. If the internet as we know it is very permissive and malleable, it is only so up to the point that service providers allow us to connect in a way that allows us to do what we want. If there were a federal law, for example, dictating the kinds of transmissions the service provider could engage in, things might change very quickly. (The prior case to examine is the federal requirement that telephone wires be easily tapped, which the phone industry was forced to comply with.) While it may be very difficult for the RIAA to come out and find every digital pirate on the net, it's much easier to pass legislation instituting a new net architecture that keeps us from pirating in the first place.

You may guffaw, but I highly suggest reading Lessig's book before guffawing too loudly.

And peer-to-peer? I think it has incredible potential as a technology. (Have a free and legal operating system!) But perhaps one of the main reasons we don't see Torrents (for example) being adopted by businesses for large-scale software distribution is the uncertainty of its continued legality. Why invest a lot of money in researching Torrents as a money-saver if it might be illegal next year?
posted by kaibutsu at 6:30 PM on April 4, 2005


when real or alleged consumer interests come up against the concerted might of a significant section of the business community, the business community wins

The telemarketers will be happy to hear that.
posted by ROU_Xenophobe at 6:32 PM on April 4, 2005


The toolmaker should not be responsible for all uses people have for his/her tool.

This is rubbish.

Some tools have VERY specific uses a toolmaker has to take responsibility for like DDOS tools, virus building toolkits or viruses themselves.

The same is true for cracking and decoding software either for pirating or reverse engineering.

I am not a big fan of big business - but the copyright and copyprotection are also important business tools for small and medium businesses.

There are many small software and media companies out there who struggle to make a living. People like their content and copy it - they don't vote with their wallets.

Most people are simply freeloaders, because it's so very human. Even popular OpenSource projects like Wikipedia struggle for funding - not to speak of smaller and but also important tools/sites.

And there is another aspect of this freeloading culture I dislike: if you are not willing to pay for Star Wars III - then simply don't watch it. Your life does not depend of pirating all pop albums of the 80's, owing 13 different fax programms and the newest beta version of Windows Longhorn.

People suck down every shit that they thing they desperatly need.

Pah!
posted by homodigitalis at 6:33 PM on April 4, 2005


This seems akin to not buying gasoline on tuesday.

Wouldn't the Supreme Court review the same data both sides provided during LA 9th Circuit trial?

Though I have the faintest memories of that trial I do remember reading that both sides presented their analysis of the amount of legal and illegal content? Links?
posted by andendau at 6:56 PM on April 4, 2005


Instead of addressing his 'arguments', lemme just say I'm glad that homodigitalis isn't on the SCOTUS. I'm sure his decisions on civil rights would be at least as uplifting as Thomas', who famously stated that "if integration... is the only way that blacks can recieve a proper education, then there must be something inferior about blacks." Fuckin' freeloaders.
posted by kaibutsu at 7:02 PM on April 4, 2005


Wow, you can ban a set of instructions?

What if it's a set of instructions on how to make a powerful explosive, and someone else uses those instructions to make the bomb and use it, killing many...are you responsible in part? (not saying yes, not saying no, just saying something to think about).

As for the P2P networks themselves -- I have used BitTorrent on several occasions to download .iso files of Linux distributions. I used to use BeShare regularly to get file updates (back when I was using BeOS 5 Pro regularly). And I downloaded two -- TWO -- albums from Napster when it was still active, because I was curious to see if it really worked. One made me a fan of that band's music, and I subsequently bought the album. The other sucked, and I deleted it long ago.

Does this mean I don't share copyrighted stuff? Truth be told, I do. Mix CDs, applications I think cost too much, stuff like that. Guess what: I don't do that on P2P. I do it in person. The only thing a shutdown of P2P apps will do is make it harder for me personally to download desirable and freely-distributed things from people who have limited bandwidth at their disposal.

So yeah, to those who say "the majority of P2P use is copyright infringement", that may be true, but for me at least it isn't.

Oh, and as for that Betamax thing being changed so that the balance of infringing/noninfringing use is weighed in the decision, what a bad idea that is! It took years before VCRs were used for noninfringing uses to the degree they are today. Technologies may get a foothold in dark corners at first, but if they're good technologies, they'll have legitimate uses eventually, and need time to expand their audience.

Incidentally, some folks say that new technologies (Home Movie Projectors, VCRs, Computers, etc.) commonly gain their first foothold due to pornography, with the legitimate uses coming later. Heck, even the PSP was released with an immediate following of media articles talking about porn movies being created and played on them...


...and hell, remember when AOL chat rooms were only good for meeting strangers to have sex with? Not that they're much better now at AOL, but now we also use them to catch potential child molesters (hopefully) before they attack kids. How cool is that?
posted by davejay at 7:05 PM on April 4, 2005


This is the sort of thing that happens when you let corporations run the country.

Mickey Mouse copyright extensions that last a century are not in the best interests of citizens.

Using the Supreme Courts to keep an obselete business model viable is not in the best interests of citizens.

Using the Patent Office to protect business methods, and to reinvent the digital wheel, is also not in the best interests of citizens.

By, by god, they're all in the best interests of big business, so you puny little citizens just better suck it down!
posted by five fresh fish at 7:29 PM on April 4, 2005


I generally try to avoid using any software ending in "-ster".
posted by First Post at 7:55 PM on April 4, 2005


kaibutsu: Please show me any economy or business that can offer all it's stuff for free. I am sure your download your food, download your electricity, download your cloths and download your house as well.

And pirating music and movies via P2P has nothing to do with civil rights and racism. Or did you download your arguments as well?
posted by homodigitalis at 7:56 PM on April 4, 2005


This site might be worth a look before derailing this discussion into a "pirates are ruinning the industry" talk:
"In 1999, according to both Nielsen and the RIAA, there were 38,857 new releases, the highest number ever. In 2003, according to Nielsen, 7,581 new releases appeared.
This is a reduction of 80.49% in new product.
* According to the RIAA's statistics:
o Value of Total Shipments -- 1999 -- $14.58 billion
o Value of Total Shipments -- 2003 -- $11.85 billion
Reduction in total value -- 18.72%
o Value of Retail Shipments -- 1999 -- $13.05 billion
o Value of Retail Shipments -- 2003 -- $11.05 billion
Reduction in Retail Value -- 15.33%

What we have here is a case where they have reduced new product by 80 percent and saw a 15-19 percent drop in shipments. If the RIAA is to be believed, the only reason people aren't buying even more of their dwindling selection is because college kids, dead grandmas and Durwood Pickle's grandkids are listening to them for free.

* In 2000, the RIAA stopped tracking new releases, but has no problem spouting false numbers to the government. In 2003, RIAA Attorney Stephen Marks told a DMCA rulemaking hearing that the RIAA had released 120,000 new titles in the "past three years." Actual total for the three-year period -- 104,034
* The RIAA submitted a Time magazine story as part of their case ("It's All Free" May 5, 2003). If you gave that any weight, please consider the questionable information in that particular article. "

posted by nkyad at 7:57 PM on April 4, 2005


Microsoft is betting for file sharing :

Groove.
posted by troutfishing at 8:25 PM on April 4, 2005


The Non Infringing site might be a good place for the justices to start their evaluation, don't you think?
posted by Duug at 3:18 AM on April 5, 2005


Please show me any economy or business that can offer all it's stuff for free.

Well, this is emphatically not the point. But. If I were in the record company's shoes, I wouldn't mind file sharing.

Tatsuo Tanaka, Professor of Economics at Keio Universtity in Japan, recently conducted a study that found that P2P file sharing in Japan does not hurt music sales and in fact may stimulate sales. Felix Oberholzer at Harvard and Koleman Strumpf and UNC-Chapel Hill came to similar conclusions regarding the US market several years ago.

From the societal perspective, Petra Moser at MIT, in a brilliant and astonishing study, similarly concluded that patent protection (over the period examined) did stimulate the quantity of innovation or invention.

The evidence is becomming increasingly clear that IP protection cannot simply be assumed to increase innovation or stimulate sales. In fact, in certain circumstances, the opposite may well be true.

And, besides, the record companies (who perform a distribution function that technology is making far less valuable) are the only ones to profit from CD sales. With very few exceptions, artists make their money from live performance and other sources of income. They only sign with a major label for the exposure that brings - which is, not coincidentally, precisely the sort of thing that P2P is good for.

Anyway, none of that is the point here, as I said. P2P technologies have very important and useful purposes above and beyond illegal file sharing.
posted by gd779 at 2:58 PM on April 5, 2005


Petra Moser at MIT, in a brilliant and astonishing study, similarly concluded that patent protection (over the period examined) did not stimulate the quantity of innovation or invention.

That's an inconvenient place to forget a word, isn't it?
posted by gd779 at 8:59 PM on April 5, 2005


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