Why doesn't the Motion Picture Association and the Record Industry wise up??

[Ariedu]

Here is an excerpt from the recent court hearing:


The Ninth Circuit identified similar influence and control in
Napster. Most notably, Napster had the “right and ability to
supervise its users’ conduct[,]” including the central indices of
files being shared and exchanged. Napster, 239 F.3d at 1023 (citing
district court opinion). Moreover, Napster users were required to
register with Napster, and access to the file-sharing system depended
upon a user’s valid registration. Id. at 1011-12, 23-24. As a
result, Napster possessed – and frequently exercised - the power to
terminate access for users who violated company policies or
applicable law. Id. at 1023. The “ability to block infringers’
access to a particular environment for any reason whatsoever is
evidence of the right and ability to supervise” the infringing
conduct. Id. Together, the centralized search indices and mandatory
registration system gave Napster both “knowledge” of what was being
exchanged, and an ability to police those exchanges.
Similarly, in a case involving vicarious liability for operation
of a peer-to-peer file-sharing network, a district court in Illinois
explained that the defendant had “the right and ability to supervise”
the infringing conduct because the defendant had the ability to
terminate users and control access to the system. In re: Aimster
Copyright Litig., 2002 U.S. Dist. LEXIS 17054, at *50-*51 (N.D. Ill.
Sep. 4, 2002).

Defendants argue principally that they do not have the ability
to control the infringement as did these other defendants. Because
they have no ability to supervise or control the file-sharing
networks, or to restrict access to them, Defendants maintain that
they cannot police what is being traded as Napster could. Plaintiffs
contend, however, that the software itself could be altered to
prevent users from sharing copyrighted files. Indeed, Napster was
obligated to exercise its “right to police” to the fullest extent,
which included implementing new client software filtering mechanisms.
See Napster, 239 F.3d at 1023-24.
Plaintiffs note that Defendants’ software already includes
optional screens for pornographic/obscene file names, and that it
could just as easily screen out copyrighted song titles. Likewise,
they note that the software searches “meta data” – information beyond
the filename contained in the file itself, including artist, title,
album, etc. – and that an effective “meta data” screen could likewise
be implemented quite easily. Finally, Plaintiffs contend that
Defendants could with relative ease employ emerging “digital
fingerprinting” technology that would block out a substantial
percentage of copyrighted songs. Defendants dispute the feasibility
and efficacy of these remedies.
However, whether these safeguards are practicable is immaterial
to this analysis, as the obligation to “police” arises only where a
defendant has the “right and ability” to supervise the infringing
conduct. See Napster, 239 F.3d at 1023; Fonovisa, 76 F.3d at 262.
Plaintiffs’ argument – that Defendants could do more to limit the
functionality of their software with respect to copyrighted works –
///

forgets the critical distinction, broached above, between the Napster
“system” and the software distributed by Defendants.
The infringement in Napster took place across an “integrated
service” designed and operated by Napster. See Napster, 239 F.3d at
1022 (quoting district court). Napster possessed the ability to
monitor and control its network, and routinely exercised its ability
to exclude particular users from it. See id. In a virtual sense,
the “premises” of the infringement were the Napster network itself,
and Napster had a duty to exercise its reserved right and ability to
police those premises to the fullest extent possible. The client
software was an essential component of the integrated Napster system,
and Napster’s obligation to police necessarily extended to the client
software itself.
Such is not the case here. Defendants provide software that
communicates across networks that are entirely outside Defendants
control. In the case of Grokster, the network is the propriety
FastTrack network, which is clearly not controlled by Defendant
Grokster. In the case of StreamCast, the network is Gnutella, the
open-source nature of which apparently places it outside the control
of any single entity.
While the parties dispute what Defendants feasibly could do to
alter their software, here, unlike in Napster, there is no admissible
evidence before the Court indicating that Defendants have the ability
to supervise and control the infringing conduct (all of which occurs
after the product has passed to end-users). The doctrine of
vicarious infringement does not contemplate liability based upon the
///
///

fact that a product could be made such that it is less susceptible to
unlawful use, where no control over the user of the product exists.
Accordingly, there are no genuine issues of fact material to
this claim, and summary judgment is appropriate.
V. CONCLUSION
The Court is not blind to the possibility that Defendants may
have intentionally structured their businesses to avoid secondary
liability for copyright infringement, while benefitting financially
from the illicit draw of their wares. While the Court need not
decide whether steps could be taken to reduce the susceptibility of
such software to unlawful use, assuming such steps could be taken,
additional legislative guidance may be well-counseled.
To justify a judicial remedy, however, Plaintiffs invite this
Court to expand existing copyright law beyond its well-drawn
boundaries. As the Supreme Court has observed, courts must tread
lightly in circumstances such as these:
The judiciary’s reluctance to expand the protections
afforded by the copyright without explicit
legislative guidance is a recurring theme.
[Citations.] Sound policy, as well as history,
supports our consistent deference to Congress when
major technological innovations alter the market for
copyrighted materials. 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.

In a case like this, in which Congress has not
plainly marked our course, we must be circumspect in
construing the scope of rights created by a
legislative enactment which never calculated such a
calculus of interests.
Sony, 464 U.S. at 431 (citations omitted); accord Teleprompter Corp.
v. Columbia Broadcasting System, Inc., 415 U.S. 394, 414, 94 S. Ct.
1129 (1974).
Therefore, for the reasons stated, the Court HEREBY GRANTS the
following Motions:
1) Defendant Grokster, Ltd.’s Motion for Summary Judgment
[132-1];
2) Defendant StreamCast Networks, Inc.’s Motion for Partial
Summary Judgment Re: Contributory Infringement [140-1]; and
3) Defendant StreamCast Networks, Inc.’s Motion for Partial
Summary Judgment Re: Vicarious Infringement [142-1].
The Court HEREBY DENIES Plaintiffs’ Motion for Summary Judgment
[146-1], with respect to Defendants Grokster, Ltd. and StreamCast
Networks, Inc. only. In addition, the Court HEREBY DENIES AS MOOT
Defendant StreamCast Networks, Inc.’s Rule 56(f) Motion [322-1].




So, in conclusion, it looks as though the software providers are exempt. The course the plaintiffs will now take is to have information subpoenaed from ISPs, which requires evidence to support such a motion. In other words, they have to provide the judge with sufficient just cause for release of such information, in order to obtain such access. I basically don't see this happening until Congress/The Supreme Court makes a definitive ruling in this matter, which will take the Record Companies and Hollywood to take someone or a group of individuals to court, and for it to appeal to the Supreme Court. This could take at least two years, and that is with it placed on a fast track due to the sensitivity and controversy surrounding the trial....I don't see the controversy dying down if they stall the trial dates, so I foresee it happening relatively quickly when it does happen.

I think what will happen is that the record industry and the movie industry will suffer...as the main reason for the illegal exchange of copyrighted materials is the cost involved with legal purchase...we're talking $16+ for cds and $8+ for movies, where the artist achieves royalties equivalent to $.09-.18 per cd, as opposed to movies which pay out tremendous costs for actors and production. Instead of curbing their costs to appeal more to the masses, they are attacking the problem that has resulted and declaring it the reason for the illegal activities. The truth is that they are ripping off the American public and the artists for the sake of their inflated salaries, excessive budgets, etc. If they truly want to stop the illegal transfer of copyrighted materials, they need to do what the VHS industry did with the advent of VCRs---incorporate the medium with a protective signal/code, and have a judgment passed that requires software providers to incorporate technology to recognize such a standard signal and to either prohibit the copying of the medium, or to only provide a limited copy to be used for evaluation purposes.

Trying to police 60million+ people by tracking them down individually is ludicrous, and they're only trying to avoid having to expend money to incorporate additional security features. I reguard both the movie and record industry as reacting to this trend in a juvenile way, and the fact that neither party has suggested such an alternative is simply exasperating.

[Ken17625]

woo woo woo its all been done, woo woo woo, its all been done before..........

[overdo]

lol @ken. weird that ppl keep doing this as first posts.....maybe that want some R.E.S.P.E.C.T:fire

[Ariedu]

ah, I take it I'm not the only one who's said this?

Well, in a way that's good;):devil

and for the giant media powers, I hope this experience burns them well:):fire



I guess I should wander around a bit more inside the forums before I just haul out a post?;)

[Ken17625]

ah, I take it I'm not the only one who's said this?

Well, in a way that's good;)

and for the giant media powers, I hope this experience burns them well:)



I guess I should wander around a bit more inside the forums before I just haul out a post?;)

Nah, its ok. You have the right to express your opinion. I was j/k.

[Theinfamousone]

LOL, just yesterday someone posted something similar.

http://www.zeropaid.com/bbs/showthre...highlight=riaa

I put my 2 cents in on that thread. However, this is a slightly more estute post then his.

It ALL depends on Congress, everyone knows that Sharman putting filters on future releases of Kazaa isn't going to do jack. We're talking about Kazaa users, they update probably every 6 months. These changes in the program won't work for about half a year just because the users are so slow to update.

And if they realize what's going on, they are going to be swarming to Kazaalite because I'm sure that'll never have limitations.

If Congress gives the RIAA carte blaunce to terrorize file sharers, it could be a grim future. It might never die, but file sharing is good because you can connect to massive amounts of people, as soon as you're stuck with just a few other people, it's just not the same.

I think Kazaa will probably get shut down because of all of their supernode server stuff. It'll be interesting to see what happens when they go to Australia or whatever and try to shut it down or whatever. And they won't reveal the source or specs just because they're losers and will think that they can make another network, but of course they can't.

And then there will be massive amounts of people flocking to other networks like Winmx and Gnutella, in my opinion, both of them are already well beyond their scaling limit, that's why they suck so bad compared to FastTrack.

If Winmx was using the FastTrack protocol, it would freakin' rock, but it doesn't so it's going to have a queue problem until they can get that fixed. This is the same reason Gnutella has so many problems. They can't search worth beans, and Shareaza can find 500+ sources and maybe get one person to transfer from, it's ridiculous

Maybe they'll go with Shareaza just because it sounds the same. Who knows.

Yes of course, everyone in the whole WORLD is reactiving childishly to filesharing. The file sharers, Madonna, the MPAA and RIAA, the courts, that's what's so great about it.

Oh yeah, welcome to Zeropaid!