The opinion is not without its weaknesses, particularly with a view to Supreme Court review. The most obvious weakness relates to the �blind eye� or �willful blindness� issue. On one account, Grokster escaped liability because it deliberately created a P2P network over which it had no control over specific file transfers. If it is trivially easy to create a network that makes it easy to stop copyright infringement, cannot Grokster be accused of trying to make an �end run� around the law, or making itself �willfully blind� to the infringements it is contributing to? This is the more important of two crucial differences with the Aimster decision penned by Judge Posner. Posner said in dicta that �One who, knowing or strongly suspecting that he is involved in shady dealings, takes steps to make sure that he does not acquire full or exact knowledge of the nature and extent of those dealings is held to have [knowledge sufficient for copyright infringement.� Arguably � constructing a system that deliberately left Grokster uninformed and incapable of stopping infringement � is what Grokster did here.

Not really. All Grokster is is a distributed search engine. The Internet does the transfers once the search engine provides the endpoint information. Considering whether they have control over file transfers is really irrelevant in that case.

Do you really practice what you preach?
Did you once in a while infringe the
rights of authors and artists? Come on.
We are all friends. Let’s be honest about
it.

I am curious to know what you did to
correct the “sin” of infringement. Write
an apology letter to authors and artists?

Three Blind Mice II
(Joseph Pietro Riolo)
<[email protected]>

Public domain notice: I put all of my expressions
in this comment in the public domain.

“no one on your side seems to accept that copyrighted material is being �shared� illegally over P2P networks”

that’s bull, and you’ve been a commentor on this blog long enough to know that. come on now. 🙂

no one here (or Mr. Lessig, anyway) is arguing that the illegal infringing of copyright does not happen with P2P file sharing mechanisms. no one here that I can tell (including Lessig) condones such illegal infringement. I also don’t think that anyone (on this blog or elsewhere) honestly thinks that the creators of content should not be compensated or have full control of their content within the limits of the law granting that control.

Additionally, I don’t think anyone here is drunk with the naive belief that the ideals of P2P are restricted to the noble, and all-powerful “educational tool”, either.

I think that the point that is being missed is the balance of technology with the potential copyright infringement that such technology can enable, and the leaning on that balance, one way or another.

Analogies get thrown around willy nilly in these sorts of complex cases: guns, knives, cigarettes…most of them are pretty awful analogies, because guns kill people. Infringing copyright, while illegal, doesn’t really kill anyone. I really don’t think that there can be a 100% accurate analogy of the ‘blind eye’ issue, except for the Sony case.

“we are against the collective ownership of creative works believing, perhaps naively, that society is best served when the property rights of individuals are respected.”

having property rights being respected — no one argues that here, but most folks here also believe that those property rights should have a reasonable limit with regards to its value in being available, at some point, to society.

collective ownership of creative works — can happen in many different ways, including being the choice of a content creator to hand over, to a collective, the ownership of his/her content, and that is their individual right.

p.s.
I will say that three blind mice has brought up excellent points here in the past, and while they have strong opinions, I would not call them a troll. Put it this way — I will take three blind mice over Richard Bennett any day of the week.

No, I don’t deny that and yes, perhaps it is a loss of revenue to the copyright owner. However, the purpose of the copyrigt system is not to ensure that every copyright holder maximizes her revenue but instad “to promote progress”. I would argue that the increased availability of music via p2p promotes progress in itself. That value is often not recognized at all in the rhetoric of the RIAA who seems to think that promoting it’s current business model is equal to “promoted progress of science and useful arts”.

I would love to be able to pay for the children’s song recorded in 1973 that I discussed with a friend yesterday and then downloaded. Why doesn’t the RIAA companies let me do that? (it’s out of print)

The music industry has yet to prove a net loss of sales due to p2p.
Unfortunately, they *have* managed to convince many people (including a lot of Congress) that they�ve proved it.

yeah, and cigarrettes don’t cause cancer.

the mindset of this blog is astonishing.

do either of you deny that P2P technology is currently being used to “share” copyrighted material?

is this reasonably a loss of revenue to the copyright owner? we think it is.

look, no one can prove precisely the amount of revenue lost by the RIAA due to file sharing. anyone who tried would have to resort to the same questionable assumptions you would have to use to estimate the economic benefits of file sharing.

what we are saying is the “other substantial non-infringing uses” argument appears on its face a far weaker argument that that proffered by the digitial media content owners.

our point is that – presently – the benefits of P2P do not outweigh the harm this technology causes to copyright owners.

the historical fact is that P2P technology was created to facilitate copyright infringement. c’mon, we’re all friends here. let’s be honest about it. grokster was a direct response to the problems napster encountered.

the fact that the architecture of P2P is fundamentally different that that of Napster is touted by it’s advocates as a reason that grokster should not be responsible for the illegal file sharing that it enables and encourages.

it’s a tool for educators! (nudge, nudge, wink, wink)

no one on your side seems to accept that copyrighted material is being “shared” illegally over P2P networks, that this is a problem, and that something reasonably should be done to hinder it.

and this is where we have a problem. your side ignores the harm, downplays it, and says it’s meaningless compared to the potential educations benefits of P2P. this is an argument based either on irrational exhuberance, or pure, adulterated spin.

it seems that P2P is important to the “everything is free” culture precisely because it is a tool for copyright infringement.

Three Blind Mice is a well-known troll on this forum. Don�t hold your breath waiting for any proof of a net loss of sales from him/her.

the three blind mice support the rights of artists, authors, engineers, developers, and other creative individuals against those who would take from them the fruits of their creative labors. we are against the collective ownership of creative works believing, perhaps naively, that society is best served when the property rights of individuals are respected.

sorry if this makes us trolls to some people.

Thank you for your answers (yes and yes). I’m interested in more feedback from other folks on this issue too.

I guess I have to wonder *why* Grokster, Morpheus, Kazaa, etc. would allow the RIAA to monitor their networks and record IP addresses, in light of this latest decision?

As an unrepentant filesharer myself, that sword of daimocles is forever above my head…

(1) P2P networks will always be capable of substantial non-infringing uses. You could set your clock or plot the orbits of celestial objects by it. �In this case, the district court found it undisputed that the software distributed by each defendant was capable of substantial noninfringing uses.� METRO-GOLDWYN-MAYER v. GROKSTER

(2) �The second factual matter is whether Grokster �contributed� to infringement by its users.� Again the answer is beyond factual dispute. No. It�s really very simple. If the corporate offices of StreamCast and Grokster where shut down tomorrow, P2p applications would continue on their merry way.

�Peer-to-peer file-sharing software upgrades can be coded in a way that prevents those who do not accept the upgrade from communicating with those who do, but those users who do not accept an upgrade may still be able to communicate with each other. The record indicates this has already occurred, with a number of nonupgraded users still being able to communicate and share files with each other.� METRO-GOLDWYN-MAYER v. GROKSTER

StreamCast and Grokster don�t really contribute anything to P2P applications. All they do is leech off its existence like a bunch of smaller fish swimming along the underbelly of the great P2P fish. If anything, they only add value because of the RIAA�s campaign of doom. There haven�t been any major advances to P2P software in years other than new technologies to protect identity. P2P is fully evolved. There is nothing to contribute with future development other than encryption technologies. At least nothing that your average Swedish teenager couldn�t solve for us for free. However, StreamCast and Grokster should be lauded for doing battle with that rather sizable armada of multinational media conglomerates.

�The �blind eye� or �willful blindness� issue� is a dead horse as well. If StreamCast and Grokster incorporated some sort of copy prevention technology, they would die and be immediately replaced by hacked versions. The great P2P fish has rows and rows of teeth like a shark.

�The sale and design of P2P filesharing technology has just been legalized in California.� Nobody sells P2P software. Do they? Who would buy it?

Will they be able to continue to flood P2P systems with false files?”

Yes and Yes. There is no expectation of privacy in files that you openly share with the world. The same applies to the corresponding IP addresses. There is nothing wrong with the bogus file flooding, a perfectly legitimate tactic and much more effective than the suits.

Do the motion picture association and RIAA have the ability/right to sneak a peek at who is sharing files and record their IP addresses for lawsuit?

Will they be able to continue to flood P2P systems with false files?