August 30, 2004

Boston Globe v. NYTimes on Grokster [7:05 am]

Today’s Boston Globe places their editorial board clearly on the side of those believing in the essential evil of file sharing in their commentary on the Grokster decision, laying the groundwork, I fear, to support Hatch’s execrable IICA: Copyright breach [pdf]

“The Supreme Court has admonished us to leave such matters to Congress,” the judges of the Ninth Circuit declared in affirming a lower court’s decision. They referred to the 1984 Betamax case, in which the high court ruled that use of videotape recorders to time-shift TV shows did not violate copyright law in the absence of a congressional prohibition.

Time-shifting, in which a TV program is taped for personal viewing later, is a far cry from the rampant copying of music files done through Grokster and other file-sharing services. The appellate judges did not dispute the plaintiffs’ contention that at least 90 percent of the material passing through Grokster software is illegally copied.

The judges contend that the remaining 10 percent constitutes substantial legal use as defined in the Betamax decision. That is a stretch. VCRs are most commonly used either to time-shift TV programs or to play movies that are legally copied and provide billions of dollars in revenues to the movie industry. Grokster and other file-sharing services pay royalties to no one.

[...] Grokster is carefully tailored, like Napster, to enable users to find the songs and performers they want, and there are no mechanisms in the software to inhibit copyright violation. Grokster generates advertising income based on its ability to attract users who routinely share copyrighted material without permission. The court should have considered the obvious intention of the software as well as its architecture.

Over at the Globe’s parent corporation, The New York Times, we get this instead: Grokster and the Information Exchange

The legal battles over file-sharing are usually construed as a fight over intellectual property rights, plain and simple. On one side are copyright owners, including songwriters and artists as well as the major recording companies and movie studios. On the other side, a handful of advocacy groups and a legion of file-sharers bent on nothing more than outright theft of copyrighted music and movies. The short title of a recent appeals decision says it all: Metro-Goldwyn-Mayer v. Grokster.

But the broader issue is the distribution of information. Software like Grokster creates a network of independent Internet users who can access one another’s computer files without going through a central server. (Napster maintained a central server, which made it legally liable in very different ways.) Grokster can certainly be used to swap music illegally. But it can also be used to exchange electronic copies of books already in the public domain, transcripts of Congressional hearings or any number of other legitimate types of information. Much like a VCR that does not distinguish between a pirated tape and one legally acquired, the technology does not care what is shared. It is impossible to strike down software like Grokster for its use in illegal file-sharing without also destroying its capacity for legal and socially beneficial activities.

This distinction lies at the heart of a recent Ninth Circuit appeals court decision, which upheld a ruling in favor of Grokster and against an army of corporate copyright owners. This decision does not make illegal file-sharing legal. But it implicitly raises a question central to most copyright battles. Is society better served by restricting or even prohibiting new technologies to protect the rights of copyright owners or is there a greater good in the widest possible exchange of information? The resolution lies somewhere in the middle. Finding it, as the court acknowledges, is properly left to Congress.

These are thorny issues indeed. Freedom of information is at the root of American democracy, and yet every day we see that freedom being compromised, controlled and limited. The Grokster decision is a ruling in favor of keeping our bets open about which technologies will turn out to serve our freedoms best.

While this demonstrates the benefits of having multiple outlets, allowing a company to take opposing sides in a debate, I feel a little anxious reading both of these. Note that, in either case, the Congress is cited as the ultimate arbiter of this issue — are both these editorial boards aware of something about Senator Hatch’s plans for the fall that the rest of us do not yet know?

On the other hand, the editorial page also includes this letter to the editor: Paying for a Song, Online.

Note that Ernest takes the NYTimes’ recent editorial efforts at face value — I just hope he’s right (and I’m mighty impressed that he was posting at 2:00AM today!!): New York Times Editorial Board == Copyfighters; see also Scrivener’s Error

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