wessman
May 13th, 2003, 02:54 PM
Lessig on Streamcast/Grokster Decision
from the preaching-to-the-choir-here dept.
posted by Hemos on Monday May 12, @08:47 (music)
http://slashdot.org/article.pl?sid=03/05/12/118211
scubacuda writes "[1]Lessig has an [2]editorial in [3]Financial Times regarding the recent court decision in favor [4]Streamcast (which distributes "[5]Morpheus") and [6]Grokster. 'The wisdom of this rule is something innovators in Silicon Valley are increasingly coming to see. When courts intervene to maintain copyright's balance, the inevitable consequence is that innovation is harmed. If every innovator with technologies affecting content must bear the burden of a lawsuit before his innovation can be allowed, there will be many fewer innovations in the distribution and creation of content. That in turn will harm artists and technologists alike. Better to let the innovation happen, and then consider whether the change caused by the innovation is so significant as to require new legislation by the legislature.'"
Links:
1. http://www.lessig.org/
2. http://news.ft.com/servlet/ContentServer?pagename=FT.com/StoryFT/FullStory&c=StoryFT&cid=1051389898745
3. http://news.ft.com/home/us
4. http://www.musiccity.com/
5. http://dl.morpheus.com/?ver=dlcom
6. http://www.grokster.com/
Grokster's victory for innovation
By Lawrence Lessig
Published: May 9 2003 16:35 | Last Updated: May 9 2003 16:35
In 1998, in a string of judicial decisions, courts in the United States found Napster responsible for the copyright infringement that occurred on its file-sharing network. The burden of these decisions effectively closed down the company. Last month, a district court held that neither Streamcast (which distributes "Morpheus") nor Grokster could be held responsible for the copyright infringement that occurred on the file-sharing networks they supported. (They both initially supported the "FastTrack" network; Streamcast now builds its client on the "Gnutella" platform.) Thus, Napster: bad; Grokster/Morpheus: good.
This decision has surprised commentators. From 10,000 feet, the two file-sharing networks look very much alike. But they are technically quite different, and that difference clearly mattered to the court. Yet more important than the technology is the difference in judicial attitude that the district court displayed. It is this difference that would really matter if upheld on appeal.
Grokster and Morpheus run on peer-to-peer networks, which means that content is shared not between them and their users but between the users of the network themselves. This was true of Napster as well. The difference is that Napster kept a central list of all the available files, which enabled it to control who got access to what content. That meant that Napster could be held responsible for copyright infringement happening on its network. Because Napster benefited from the infringement and had the opportunity to stop it, the courts held Napster responsible.
The design of the Morpheus/Grokster networks, however, means that the defendants do not have the same opportunity. Because there is no central list of files that can be shared, neither Grokster nor Streamcast are able to control the content that users access. There is therefore no way for either company to take steps to block infringing sharing.
No doubt, the court observed, these companies benefited from the sharing. And no doubt, it went on, peer-to-peer networks were designed in part to avoid the ability to block infringing sharing. But because the law requires that there be both a benefit from the infringement and an opportunity to do something to stop it, District Court Judge Stephen Wilson was not willing to find either company responsible.
The reason the court hesitated is a good one. As the district court reminded us, the practice in copyright cases has not been for courts to expand liability in response to new technologies. It is instead that any such expansion be done by Congress. This principle was the basis upon which the Supreme Court decided that Sony was not responsible for the copyright infringement that the VCR enabled. As the Court reasoned, no doubt Sony could have designed the VCR to disable the ability of users to record shows from the air. But whether Sony should have been so required was a decision for Congress. The only question that a court should ask is whether the technology is "capable of substantial noninfringing uses". If it is, whether its use should on balance be considered infringing is a question for policymakers, not courts.
In the VCR case, Congress eventually decided that the use should be permitted - even though, without doubt, many people were copying copyrighted material without the permission of the copyright owner, and, no doubt, Sony benefited from that copying. But as Congress and the courts well recognise, copyright law is not absolute. The lines that Congress draws must balance the interests of users and copyright owners to the end of spurring innovation. That balance is inherently political. And therefore, when a new technology changes the balance, the appropriate role for a court is to leave it to the political branch to decide whether the change is to be allowed or to be remedied through new legislation.
The wisdom of this rule is something innovators in Silicon Valley are increasingly coming to see. When courts intervene to maintain copyright's balance, the inevitable consequence is that innovation is harmed. If every innovator with technologies affecting content must bear the burden of a lawsuit before his innovation can be allowed, there will be many fewer innovations in the distribution and creation of content. That in turn will harm artists and technologists alike. Better to let the innovation happen, and then consider whether the change caused by the innovation is so significant as to require new legislation by the legislature.
Judge Wilson's decision is the first sign of a thaw in the winter that has stopped the technology revolution cold. Everyone would benefit if the wisdom of this lower court could percolate up through the federal judiciary. Within the limits of the constitution, the balance that is copyright protection is not meet for judicial review. The costs of the inappropriate review that has defined the past half-decade should remind the courts of a lesson they should have learned long ago.
Lawrence Lessig is a professor of law at Stanford Law School and author ofThe Future of Ideas: The Fate of the Commons in a Connected World
© Copyright The Financial Times Ltd 2003. "FT" and "Financial Times" are trademarks of the Financial Times.
from the preaching-to-the-choir-here dept.
posted by Hemos on Monday May 12, @08:47 (music)
http://slashdot.org/article.pl?sid=03/05/12/118211
scubacuda writes "[1]Lessig has an [2]editorial in [3]Financial Times regarding the recent court decision in favor [4]Streamcast (which distributes "[5]Morpheus") and [6]Grokster. 'The wisdom of this rule is something innovators in Silicon Valley are increasingly coming to see. When courts intervene to maintain copyright's balance, the inevitable consequence is that innovation is harmed. If every innovator with technologies affecting content must bear the burden of a lawsuit before his innovation can be allowed, there will be many fewer innovations in the distribution and creation of content. That in turn will harm artists and technologists alike. Better to let the innovation happen, and then consider whether the change caused by the innovation is so significant as to require new legislation by the legislature.'"
Links:
1. http://www.lessig.org/
2. http://news.ft.com/servlet/ContentServer?pagename=FT.com/StoryFT/FullStory&c=StoryFT&cid=1051389898745
3. http://news.ft.com/home/us
4. http://www.musiccity.com/
5. http://dl.morpheus.com/?ver=dlcom
6. http://www.grokster.com/
Grokster's victory for innovation
By Lawrence Lessig
Published: May 9 2003 16:35 | Last Updated: May 9 2003 16:35
In 1998, in a string of judicial decisions, courts in the United States found Napster responsible for the copyright infringement that occurred on its file-sharing network. The burden of these decisions effectively closed down the company. Last month, a district court held that neither Streamcast (which distributes "Morpheus") nor Grokster could be held responsible for the copyright infringement that occurred on the file-sharing networks they supported. (They both initially supported the "FastTrack" network; Streamcast now builds its client on the "Gnutella" platform.) Thus, Napster: bad; Grokster/Morpheus: good.
This decision has surprised commentators. From 10,000 feet, the two file-sharing networks look very much alike. But they are technically quite different, and that difference clearly mattered to the court. Yet more important than the technology is the difference in judicial attitude that the district court displayed. It is this difference that would really matter if upheld on appeal.
Grokster and Morpheus run on peer-to-peer networks, which means that content is shared not between them and their users but between the users of the network themselves. This was true of Napster as well. The difference is that Napster kept a central list of all the available files, which enabled it to control who got access to what content. That meant that Napster could be held responsible for copyright infringement happening on its network. Because Napster benefited from the infringement and had the opportunity to stop it, the courts held Napster responsible.
The design of the Morpheus/Grokster networks, however, means that the defendants do not have the same opportunity. Because there is no central list of files that can be shared, neither Grokster nor Streamcast are able to control the content that users access. There is therefore no way for either company to take steps to block infringing sharing.
No doubt, the court observed, these companies benefited from the sharing. And no doubt, it went on, peer-to-peer networks were designed in part to avoid the ability to block infringing sharing. But because the law requires that there be both a benefit from the infringement and an opportunity to do something to stop it, District Court Judge Stephen Wilson was not willing to find either company responsible.
The reason the court hesitated is a good one. As the district court reminded us, the practice in copyright cases has not been for courts to expand liability in response to new technologies. It is instead that any such expansion be done by Congress. This principle was the basis upon which the Supreme Court decided that Sony was not responsible for the copyright infringement that the VCR enabled. As the Court reasoned, no doubt Sony could have designed the VCR to disable the ability of users to record shows from the air. But whether Sony should have been so required was a decision for Congress. The only question that a court should ask is whether the technology is "capable of substantial noninfringing uses". If it is, whether its use should on balance be considered infringing is a question for policymakers, not courts.
In the VCR case, Congress eventually decided that the use should be permitted - even though, without doubt, many people were copying copyrighted material without the permission of the copyright owner, and, no doubt, Sony benefited from that copying. But as Congress and the courts well recognise, copyright law is not absolute. The lines that Congress draws must balance the interests of users and copyright owners to the end of spurring innovation. That balance is inherently political. And therefore, when a new technology changes the balance, the appropriate role for a court is to leave it to the political branch to decide whether the change is to be allowed or to be remedied through new legislation.
The wisdom of this rule is something innovators in Silicon Valley are increasingly coming to see. When courts intervene to maintain copyright's balance, the inevitable consequence is that innovation is harmed. If every innovator with technologies affecting content must bear the burden of a lawsuit before his innovation can be allowed, there will be many fewer innovations in the distribution and creation of content. That in turn will harm artists and technologists alike. Better to let the innovation happen, and then consider whether the change caused by the innovation is so significant as to require new legislation by the legislature.
Judge Wilson's decision is the first sign of a thaw in the winter that has stopped the technology revolution cold. Everyone would benefit if the wisdom of this lower court could percolate up through the federal judiciary. Within the limits of the constitution, the balance that is copyright protection is not meet for judicial review. The costs of the inappropriate review that has defined the past half-decade should remind the courts of a lesson they should have learned long ago.
Lawrence Lessig is a professor of law at Stanford Law School and author ofThe Future of Ideas: The Fate of the Commons in a Connected World
© Copyright The Financial Times Ltd 2003. "FT" and "Financial Times" are trademarks of the Financial Times.