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March 29, 2005

Detailed Grokster Writeup [7:10 pm]

A Few Notes from the Grokster Argument [via Copyfight] - As Donna says, read it all…..

MGM’s rebuttal opened with a real howler, and I am a little surprised that none of the Justices interrupted their lawyer to challenge it, but he was speaking pretty quickly and forcefully, so I guess they were inclined to let him sum up. Addressing the relief MGM was seeking, their lawyer said: Grokster is a machine built upon inducing infringement and we are entitled to an injunction shutting it down. The obvious rejoinder, based on the lower courts’ express findings in the case, is that an injunction can’t shut down Grokster, the network, because it exists completely apart from Grokster, the company. If this was an attempt at some sleight of hand with the technologically unsophisticated judges, I don’t see it going anywhere, because the questioning of both sides seemed to reflect that the Justices have a hearteningly clear grasp of what the software does and doesn’t do. MGM also argued that the Ninth Circuit’s decision was itself chilling technological innovation, although they defined “innovation” as innovation authorized by copyright holders. MGM closed with its pity-the-starving-artists line, complaining about the lost revenues from hypothesized sales it says would have occurred absent file-sharing.

See also this CNet-hosted photo gallery

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A First Look at Yahoo!360 [7:02 pm]

Some interesting notes from an early invitee: Looking around Yahoo! 360

More worrisome, however, is the RSS feed. I took a look at it was a bit annoyed by the URL structure for it but that was the least of my worries. When I looked inside is when I made the decision that I would never use the 360 blog for anything serious. My reason was in the code of the RSS feed where the following appeared:

Copyright 2005, Yahoo!

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BBC’s Internet Distribution [2:55 pm]

BBC’s online radio streams ahead

The number of people listening to BBC radio shows on the internet has grown by a quarter in the past month.

Online demands to hear radio programmes passed nine million in February - up more than 25% on the previous month.

The show which is most requested is Radio 4’s long-running soap opera The Archers, with Chris Moyles’ Radio 1 breakfast show in second spot.

Online listening to digital-only networks, such as 6 Music, has soared by 83% in the last year.

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Virtual Work and Taxation Jurisdiction [2:35 pm]

High Court Rules Telecommuter Living Out of State Owes Full New York Taxes

A man who lives out of state while working by computer must pay New York tax on his full income, the state’s highest court ruled Tuesday in a case that could have wide implications for the growing practice of telecommuting.

The Court of Appeals said computer programmer Thomas Huckaby, who lives in Nashville, Tenn., owed New York income tax for his full salary, not just the time he spent working at his employer’s New York offices.

[...] Huckaby’s attorney, Peter Faber, said the case is the first of its kind involving the income tax liability of a telecommuter. He said he may appeal to the U.S. Supreme Court because most states base income tax liability on the residence of the taxpayer.

“To say a person’s taxability depends on where his employer is wrong,” Faber said.

But Marc Violette, spokesman for state Assistant Solicitor General Julie Mereson, said: “New York provides the job, New York provides the professional opportunity, and New York should be able to tax that income, even if the employee for his own convenience was working outside of New York state.”

The opinion: In the Matter of Thomas L. Huckaby v. New York State Division of Tax Appeals, Tax Appeals Tribunal, et al.

Later: NYTimes’ Telecommuters Not Exempt From New York Tax

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ZDNet’s (and Other’s) Coverage of Grokster Arguments [12:49 pm]

Supreme Court takes hard look at P2P (CNet version)

In their questions, the justices were critical of the entertainment industry’s proposal, which would hold companies “predominantly” supported by piracy liable for copyright infringement. However, they showed little sympathy for the file-swapping companies’ business model.

“What you are suggesting is unlawful expropriation of property as a kind of start-up capital,” said Justice Anthony Kennedy. “From an economic standpoint and legal standpoint, that sounds wrong.”

Donna points to SCOTUS Blog’s report: Court conflicted over file-swapping

Also: learn about what it is to wait in line to get into a hot Supreme Court session from these links at BoingBoing

Later: The Washington Post article seems to be carving out the scope of the compromise — Supreme Court Hears File-Sharing Case (some audio)

Justice Stephen G. Breyer said the same software that can be used to steal copyrighted materials offered at least conceptually “some really excellent uses” that are legal.

Justice Antonin Scalia maintained that a ruling for entertainment companies could mean that if “I’m a new inventor, I’m going to get sued right away.”

While seeming leery of allowing lawsuits, the court also appeared deeply troubled by efforts of the companies that manufacture so-called file-sharing software to encourage Internet piracy and profit from it.

Slashdot: Supreme Court Takes Hard Look at P2P

EFF DeepLinks: Justices Ask the Right Questions in MGM v. Grokster and Grokster: From the Courthouse Steps

Missed the (wholly unbiased <G>) LATimes editorial this morning: California’s Civil War

None of this is to say that peer-to-peer systems like Grokster and Morpheus aren’t allowing consumers to shoplift digitally, victimizing creative artists and their corporate distributors. But there are plenty of non- infringing uses for file-sharing systems, and the justices today will probably quibble about how much legitimate copying is enough to save the likes of Grokster.

Wired News’ File Sharing Has Supreme Moment

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Clearing Copyrights: Movie Scripts & History [12:00 pm]

Historical Epic Is Focus of Copyright Dispute

In a letter this month, a lawyer for James Reston Jr., author of “Warriors of God: Richard the Lionheart and Saladin in the Third Crusade,” accused the studio of violating American and international copyright law by using “events, characters, scenes, descriptions and character tensions” in the film that were “strikingly similar” to his narrative history.

A lawyer for the studio responded last week with a five-page rebuttal that said the creators of “Kingdom of Heaven,” to be released on May 6, had never read Mr. Reston’s book. The letter added: “The works are not substantially similar. In fact they are completely dissimilar, other than having in common some elements that are historically authentic.”

But Mr. Reston’s lawyer, Timothy DeBaets, said his client would decide this week whether to pursue a lawsuit, since he was convinced that his painstaking work over three years - including research in original sources in the Library of Congress and several Arab countries - had been lifted by the screenwriter William Monahan, who was hired by Mr. Scott.

“The key thing in the letter is, they say no one read it,” Mr. DeBaets said. “We don’t believe that, and we have evidence to the contrary. I think they read Jim’s book and took material from there, and after the fact it’s easy to run around and find stuff, since it’s history.”

[...] Michael J. Plonsker, a lawyer with the Los Angeles firm Alschuler Grossman Stein & Kahan who litigates such cases, said winning them was difficult but not impossible.

“History is not copyrightable,” Mr. Plonsker said. “But if the manner in which you tell about a historical event is a particular expression of character or sequence of events, that is copyrightable. If you can show that the defendant had access and that the works are substantially similar, which is the legal standard, then you can win.”

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An eBay For Credit? [7:58 am]

Either a Borrower or a Lender Be

What eBay did for buying and selling, Britain’s Zopa hopes to do for lending and borrowing money.

Zopa, which counts Benchmark Capital, the same firm that funded eBay, among its backers, is taking a variant of the auction site’s business model and applying it to put people who want to lend in touch with credit-worthy people who want to borrow.

“For the first time, people who want to lend or borrow money have a real alternative to going to a bank, financial institution or big corporation,” said James Alexander, Zopa’s chief technical officer. According to Alexander, Zopa is not a bank, but an online exchange that gives lenders access to credit-worthy borrowers.

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The Reg’s Grokster Commentary [7:46 am]

Too bad this didn’t make it to the NYTimes instead: Silent tech majority invites Mickey Mouse to poison P2P

It happened years ago. The “KA” appeared, and everyone embraced it. They hugged that “KA” with all their might, hoping it might correct a collapsing technology scene. Then, when the “KA” grew a sore, they dumped it.

The “KA” or killer app was Napster - and on a larger scale P2P software. P2P file-trading started to thrive around the same time that the Nasdaq started to dive. Intel saw P2P as a way to sell more processors and publicly cheered the technology. Sun Microsystems followed suit with the JXTA P2P protocols. A host of smaller software companies crafted flimsy business models around the P2P idea. These players recognized that the time to whine about not having a killer app had passed - one was gyrating right in front of them.

Now we find P2P software in front of the Supreme Court. And not only P2P software. Hollywood today will ask the Supremes to overturn an ancient decision protecting the use of VCRs and indirectly other devices that can be used to copy content for personal use.

Has the tech industry that once salivated over P2P software’s ability to chew through processors, hard drives and bandwidth run to the rescue? Not exactly.

The only company willing to stand out on its own and back the P2P software makers is Intel - the most vocal backer of the old, illegal Napster (not the boring new Napster.)

[...] You might think some smart folks over at Seagate, AMD, Cisco, Adobe, IBM, Apple, HP, EMC would consider for a minute how a P2P revolution could benefit them. No such luck.

[...] There is a depressing mood hanging over this whole mess. In this time of Bushness, you can’t help but feel that the Supreme Court will overturn Sony and put some temporary power back in the hands of the dinosaurs. “Let the eagles soar,” as Ashcroft liked to sing. The Bushies have already said they’d prefer to see these P2P culprits be put down. We’re not quite sure how the Republicans ended up siding with effete, drug addled Hollywood types. But they did.

And then you have this monster of a technology industry - the engine of America’s growth - that can barely muster a few words in its own defense. The IT crowd - other than Microsoft and to some degree Intel - has never been big on Washington; but come on. Are these companies that produce the life blood of our economy really going to be pushed around by a stuffed mouse with buttons and helium balloon shoved down his throat? Only one company had an opinion all its own on the matter? Shame.

It’s not even just lack of voice in the briefs that is depressing. The big whig vendor brass has been silent on the matter. No one has had the guts to call out Hollywood for the ancients they are. No major company been smart enough to take a strong, public stand on P2P. That McNealy guy at Sun usually has a lot to say. Instead, they’ve twiddled their thumbs as the RIAA sued your children, grandparents and naval cadets.

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Ironic Note in AP’s Grokster Writeup Today [7:38 am]

Court Case Could Rewrite Copyright Rules [pdf]

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.

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In Case You Missed It…. [7:28 am]

Hiawatha Bray doesn’t like file sharing — or much about the technologies associated with it. And he wants to get his licks in before the hearing today. If you thought yesterday’s NYTimes editorial was a head scratcher, take a look at Bray’s latest: Court to decide fate of file-swap software [pdf]

If the Supreme Court reaffirms this ruling, major media companies would lose a powerful weapon in their campaign to stamp out illegal Internet file-sharing, which costs the companies hundreds of millions of dollars in lost revenue.

[...] Wayne Rosso, former president of Grokster, is now chief executive of Mashboxx, a new company that plans to offer a file-sharing system that doesn’t violate copyright laws. Rosso predicted the court will try to find a compromise. ”You can’t expect the court to simply overrule Betamax,” Rosso said. ”I think it’s going be one of these opinions that will be — how should I say — eclectic, and it’ll take about a month to figure it out.”

Whatever the outcome, Rosso predicted a bleak future for makers of file-swapping software. Even if Grokster and StreamCast win, he said, the movie and music companies will pressure Congress to pass tough new legislation to restrict file-swapping.

”The free lunch is over. Close the buffet,” he said. ”To be honest, even when I was at Grokster, we knew it couldn’t go on.”

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