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2005-07-09, 21:52
The United States Supreme Court issued a decision in case 04-480 MGM versus Grokster on 2005-06-27. It was the first case related to filesharing that has been taken by the Court. The Supreme Court is the top court of all courts in the United States and there are no higher appeals to its decisions.

The decision in the case by the nine judges was unanimous in that they all agreed with each other that the lower courts had misapplied a previous 1984 Sony versus Universal Supreme Court ruling in deciding their cases. Here is what the lower courts decided: that because the Grokster and Morpheus software programs were found to have substantial noninfringing uses, and because any infringement that occurred by the p2p users was beyond the knowledge or control of the Grokster and StreamCast companies, they were not liable for the copyright infringement of its users. And this is what the Supreme Court as written by judge Souter decided: that although it agreed with the lower courts that the software programs Grokster and Morpheus had substantial noninfringing uses, that finding in itself did not automatically exonerate the companies from being liable for the copyright infringement of its users. Due to other reasons, the Supreme Court found that the Grokster and StreamCast companies were guilty of promoting copyright infringement.

There are three reasons according to the Supreme Court why they were found guilty. 1. They promoted their programs as new Napster programs by way of StreamCast's involvement in the MusicCity OpenNap network and with Grokster working on a program called Swaptor which used the OpenNap protocol. 2. They made money off of the adware and spyware that was in their p2p programs and on their websites. 3. They did not filter their search results or try to discourage their users from engaging in copyright infringement.

The filesharing companies behaved unethically on point number two, because commercialism has no righteous place in filesharing. But on points one and three I disagree with the findings of the Court. With point number one I found the Court inappropriately assigned guilt by association on the companies which advertised themselves as the next version of Napster. This action on the part of the companies was not encouraging infringement, but rather trying to tap into the large userbase of Napster that was at the time the most popular p2p application. Also their finding that StreamCast had created OpenNap as a new Napster goes against my own findings. According to my own research, the OpenNap protocol (http://opennap.sourceforge.net/napster.txt) was developed by drscholl through reverse engineering the Napster program. When the OpenNap (http://opennap.sourceforge.net/) source code was released, it allowed for software developers to use or modify the software and make their own p2p networks independently of the Napster company's network, using the Napster client or other p2p clients. Napster started filtering the search results on its own network and then eventually shut the network down. I disagree with the Supreme Court's point number three because it is not the job of the p2p software maker to discourage people from infringing on copyrights. They are there to provide a service and are mere conduits for people to exchange files, the same way an ISP is a neutral conduit by providing you with an internet connection. To think that one filesharing company is more liable than another because it neglects to advise its users about the vices of copyright infringement, shows naivety on the part of the Supreme Court members. Such warnings from filesharing program developers can be disingenuous, and are routinely ignored by filesharing users.

While the Supreme Court was unanimous in its decision, three different opinions were released by the Court. You can read all of them in pdf format here (http://www.eff.org/IP/P2P/MGM_v_Grokster/04-480.pdf) or in html format here (http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=us/000/04-480.html). The opinion of the Court was written by judge Souter. Separate opinions were issued by judge Ginsburg, with Kennedy concurring; and by judge Breyer, with Stevens and O'Connor concurring.

Rather than revisit or clarify the 1984 Sony versus Universal decision as MGM had requested, the Souter opinion declined to in this case because it felt that it was unnecessary. This is an excerpt from the Souter opinion:
"Because Sony did not displace other theories of secondary liability, and because we find below that it was error to grant summary judgment to the companies on MGM's inducement claim, we do not revisit Sony further, as MGM requests, to add a more quantified description of the point of balance between protection and commerce when liability rests solely on distribution with knowledge that unlawful use will occur. It is enough to note that the Ninth Circuit's judgment rested on an erroneous understanding of Sony and to leave further consideration of the Sony rule for a day when that may be required."

However the two other opinions issued in this case by Ginsburg and Breyer did explore the 1984 Sony versus Universal decision more. The Ginsburg opinion found that the evidence presented by Grokster and StreamCast in defense of their programs was inadequate for them to declare that their programs were capable of substantial noninfringing uses. Here is an excerpt from the Ginsburg opinion:
"Fairly appraised, the evidence was insufficient to demonstrate, beyond genuine debate, a reasonable prospect that substantial or commercially significant noninfringing uses were likely to develop over time."

The Breyer opinion refuted the Ginsburg opinion and found that there was suitable evidence demonstrating the capability of substantial noninfringing uses in the Grokster and Morpheus programs. Here is an excerpt from the Breyer opinion:
"When measured against Sony's underlying evidence and analysis, the evidence now before us shows that Grokster passes Sony's test--that is, whether the company's product is capable of substantial or commercially significant noninfringing uses."
Also the Breyer opinion believes that the Ginsburg interpretation of the Sony versus Universal case undermines the very protection to technology developers that it was supposed to provide.
"The second, more difficult, question is whether a modified Sony rule (or a strict interpretation) would significantly weaken the law's ability to protect new technology. JUSTICE GINSBURG's approach would require defendants to produce considerably more concrete evidence--more than was presented here--to earn Sony's shelter. That heavier evidentiary demand, and especially the more dramatic (case-by-case balancing) modifications that MGM and the Government seek, would, I believe, undercut the protection that Sony now offers."

So this shows a split in the makeup of the Supreme Court, with judges Ginsburg and Kennedy more likely to be enemies of filesharing; and judges Breyer, Stevens, and O'Connor taking a more benevolent stance. To summarize the three opinions again: it was the Souter opinion which said that it was unnecessary in this case to revisit or clarify the Sony versus Universal decision, while the Ginsburg opinion was in favor of making it difficult for technology developers to use Sony to avoid liability, and the Breyer opinion was in favor of interpeting Sony as one which should protect technology developers without putting them in the difficult situation of having to defend the worthiness of their creations.

While this case was the first case related to filesharing to be taken by the Supreme Court, it was not to me the ultimate filesharing case. This case was one of the p2p developers versus the copyright holders. The ultimate showdown for me would be the case of the individual filesharer versus the copyright holders. That would happen if one of the eleven thousand individuals currently being sued by the RIAA in civil lawsuits were to appeal all the way to the Supreme Court and if the Court were to actually take on the case. Then the judges would have to weigh the conflicting rights between those of the copyright holders, and those of the common person defending his right to engage in filesharing as a religion and a way of life. You see, the sharing of the things one loves in life with one's friends is a fundamental right included within the right to life, liberty, and the pursuit of happiness; and should be taken no less seriously if those friends and communities of music lovers exist by way of the internet, as exemplified in the Beat King (http://www.beatking.com/forums/) music lover and filesharing community. I believe that the right of music lovers who are filesharers to share their music with other music lovers who are filesharers, to be a stronger right that would outweigh the supposed right of copyright holders to control the distribution of things which they own copyrights of. I hope if the Supreme Court ever takes a case involving an individual filesharer, that it agrees with me and recognizes the rights of the filesharers to be larger than the rights of the copyright holders.

Filesharers are a diverse group, with some being motivated by economic reasons to get their music cheaply, and others who are righteous music lovers that simply want to share their music with others, regardless of copyright concerns and without regard to economic reasons. For the latter group, it does not matter whether they are threatened with lawsuits and whether nine judges who currently sit in the top court of the United States are sympathetic to their cause or not. They will continue to do what they do, because for them filesharing is a religion and a way of life. The Supreme Court or any other court may some day rule against such righteous filesharers, and the consequence of such a ruling will be that their stature and credibility will be diminished, in the eyes of those who are righteous.

2005-07-15, 00:55
I have found a good analysis of the Supreme Court decision at FK2W posted by Raymond Blijd 2005-07-08:

Grokster; just more questions (http://www.fk2w.com/html/modules.php?op=modload&name=News&file=article&sid=101)