Dont know If you are still reading this.

Remembering I am from a foriegn jurisdiction (where Kazaa is going way down) and we apply a different set of principles, logic and standards I think our little chat has been quite helpful in letting me understand the US position.

In any event, I am sure you have read the US amici Curae brief for the plaintiff (applicant) in the MGM v Grokster case.

I think the best arguments that I have seen against the Betamax decision is in there and it is something that I would have argued but didnt have the american legal knowledge to do so especially:-

In Sony, the Court stated that a seller of a product
that enables copyright infringement may be held liable if the
product is not “capable of commercially significant noninfringing
uses.” 464 U.S. at 442. The court of appeals held
that, even accepting that 90% or more of the uses of respondents’
file-sharing networks are infringing, the mere fact
that the systems are “capable” of noninfringing transfers
precluded liability under Sony, notwithstanding the relatively
trivial proportion and commercial significance of such
uses. Pet. App. 11a. The Ninth Circuit’s approach would
eviscerate the “effective” protection against copyright infringement
that Sony demands. 464 U.S. at 442.
Although Sony did not give precise content to the term
“commercially significant,” commercial significance should
be evaluated in the context of the particular defendant’s
business, as opposed to the technology in the abstract.
While P2P technology unquestionably can be employed for a
variety of legitimate purposes without giving rise to rampant
copyright infringement, the record (read in the light
most favorable to petitioners) suggests that respondents
have built their particular P2P networks around the “draw”
of massive copyright infringement. Respondents therefore
cannot evade liability under Sony merely by pointing to
other, legitimate, uses of the technology.

Although this doesnt defeat the logic of Betamax so much as go around it they also argued:-

B. The Court of Appeals’ Approach Would Render The
Sony Standard Virtually Insurmountable
The relationship between infringing and noninfringing
uses in this case is essentially the opposite of the situation
before the Court in Sony in light of the majority’s fair use
holding. The record shows that respondents’ software is
overwhelmingly used for the unlawful copying of copyrighted
works. Petitioners apparently offered evidence that
illegal trading of copyrighted works accounted for at least
90%, and perhaps more, of the files distributed on respondents’
networks. Pet. 9-10 & n.7; Pet. App. 4a. The Ninth
Circuit nevertheless concluded that the residuum of noninfringing
uses was sufficient as a matter of law to foreclose
liability under Sony. See id. at 10a-12a.
In so holding, the court of appeals fundamentally misconstrued
Sony’s requirement that noninfringing uses be “commercially
significant.” The court of appeals relied primarily
on evidence that certain files—including public domain
works and songs by artists who had authorized free distribution
of their music—could be transferred over respondents’
networks without infringing copyrights, and anecdotal evidence
that such distribution had been significant to the
commercial success of at least one band, Wilco. See Pet.
App. 10a-11a. The court of appeals refused to consider
whether the small fraction of file-transfers represented by
such anecdotal evidence was “commercially significant” to
respondents’ businesses. Indeed, the court of appeals specifically
refused to consider the relative frequency of in12
fringing and non-infringing uses of respondents’ networks as
part of the “commercially significant” inquiry. See id. at 11a-
12a n.9.
Under the standard employed by the court of appeals,
therefore, even relatively trivial noninfringing uses will
suffice to defeat secondary liability under Sony. That
standard renders Sony’s recognition of contributory liability
virtually a dead letter; copy-facilitating products are almost
always capable of copying public domain works, and thus
would satisfy the Ninth Circuit’s test.

Now as I recall you may have been guilty of taking the ‘fair use’ is a ‘non-infringing use’ and therefore they should be let off approach more than once:-

While certainly the Court did note that some copyright holders wanted viewers to be able to time shift, it also relied upon fair use. If there were a license, there would be no such thing as time shifting as a fair use — it wouldn’t matter if it were fair or not, and there’d be no point in considering the question. Only if time shifting is unauthorized altogether for some particular work would fair use be an applicable defense.

The US doesnt seem to think that is quite right:-

Nonetheless, Sony’s directive to consider “substantial noninfringing
uses, present or prospective” requires more than a
showing that the product “could be used in noninfringing
ways,” In re Aimster Copyright Litig., 334 F.3d 643, 650, 651
(7th Cir. 2003) (Aimster). Instead, the question is whether
the actual uses are, or are sufficiently likely to become,
commercially significant.

So on that basis we have to ask whether it is both ‘fair use’ or some other purposes and ‘commercially significant’ and ‘sufficiently likely to be used in that method’.

This is a long way from mere potentiality.

But I think one of the most important parts of our debate – the question of application of ‘fair use’ or another defence whether statutory or equitable where I said:-

I also think a consideration of the effect on the potential market for a work being uploaded onto grokster would deny fair use – either because it reduces the profitability or in the case of freely distributed works it increases the recognition and saleability of those works. –> This is not like a xerox machine.

To which you said:-

So what? Under Betamax, only a potential substantial noninfringing use is needed. That doesn’t require fair uses. Just noninfringing ones. If people can lawfully share Wilco songs via Grokster, then there’s one right there. There’s a ton of public domain works that potentially might be shared with Grokster. That’s got to be substantial.

The US considered this point when it said:-

the Court’s careful consideration of whether time-shifting was a fair use
indicates that the Court would have reacted quite differently
to a product—such as a VTR with recording, but no
playback, capacity—that while theoretically capable of
noninfringing uses, appeared to be designed to facilitate
infringement.

I think alot of us have fallen into the trap of oversimplifying Betamax without wholly considering the justification that were used to formulate this easily satisfied standard. I note however, that Lessig did not fall into this trap and mainly went to the ‘active inducement’ arguments, much like the AIPLA on the other side.

You are right, none of us really know what they will say in June but I dont think it will be a xerox of the Betamax decision.

Alex

If a copyright holder authorizes certain acts, and people engage in those acts without knowing of the authorization, have they infringed? The answer is no — their conduct, whether they knew it or not, was lawful. Individuals do not get to create actionable rights of authors based upon their own misinformed conceptions. Remember: authorizations can be gifts; they don’t have to be contractual.

Fair Use is raised and I argue that it cannot apply because of the commercial asset of goodwill and reputation (Do you have the tort of passing off) that is either contravened or created as a result of free publication. The commercial asset is a profit and one of the things that will prevent section 107 from being established.

Now that’s a novel argument. I don’t think it’ll work. There is a significant divide between copyright and trademark. Essentially you seem to be saying that due to trademark concerns, we might disallow something that otherwise would be legal if analyzed purely as a matter of copyright. Instead I would suggest that if someone is concerned with harm to goodwill, that they bring a trademark action, if possible. Copyright does not protect that. In fact, depending on what kind of fair use we’re talking about, neither does trademark. You can quote from a work (a typical fair use) to write a scathing review, and directly harm goodwill, for example.

I certainly agree with respect to direct infringement but I dont think that this applies with respect to contributory infringement because it could be raised in any contributory infringement proceedings from technology to bands singing in public bars or hotels to broadcasting.

Well, you can’t have secondary liability without direct liability. The fair use in Sony was as to direct infringers. Sony was not going out there and time shifting. In fact, I can’t think of any secondary infringers who claimed their own fair uses, at least off of the top of my head.

I dont think that the Supreme Court will apply equity to prevent liability because of a greater volume and concurrent likelyhood of copyright works travelling through the system. In fact the maxim ‘equity only helps those with clean hands’ will probably prevent equitable ‘Fair Use’ if another non-infringing use cannot be raised.

Meh. Grokster can do something easy like allege the potential of authorized works distributed by their network, or the potential of public domain works authorized by their network, etc. They don’t need an actual fair use under Sony, just a potential one. And the Sony doctrine isn’t really an equitable one like fair use, so much as it is a concern about expanding copyright into essentially a patent right over technologies (particularly those that aren’t completely mature, as anything with any potential substantial uses must be).

How Grokster will come out is quite a mystery to me, however. How it should come out, though, IMO, is an upholding of the lower courts and of Sony in all its glory. Anything else is too harmful to technology.

But as a lawyer I know damage when I see it.

I’m also a lawyer, but I think that a mere reduction in the number of works created is not damage; at least, not important damage. What’s important is the overall public good. Not the health of artists for their own sake.

I would prefer to prevent a precedent of legalised invasion into my computer system than continue software that achieves what can be done with a web site.

P2P is easier to use than setting up a web site, IMO. In fact, if it weren’t easy, it wouldn’t be as popular.

Personally, I believe in the third option: legalize (or at least make nonactionable) any otherwise infringing act by natural persons, if not essentially commercial in nature. This would have a significant affect on the industry, but I think that it would still be for the best in the long run.

Regarding Wilco I have to return to the original point that there are no licences passed and therefore no authorisation.

Although a licence may be communicated to the world the actual communication of the licence must take place.

This is the importance of the original argument. Despite the fact an artist may himself put the copyright on Grokster the resulting copying is an infringement.

Fair Use is raised and I argue that it cannot apply because of the commercial asset of goodwill and reputation (Do you have the tort of passing off) that is either contravened or created as a result of free publication. The commercial asset is a profit and one of the things that will prevent section 107 from being established.

You state that:-

remember without a licence or other legal right being passed the equitable doctrine of ‘Fair use’ cannot be raised

You have that backwards. Only where no authorization or other statutory exception applies will a court resort to fair use. (Of course you could always raise it, but that’s no guarantee that a court won’t find an easier way to find in your favor, and leave the fair use question unexamined)

I certainly agree with respect to direct infringement but I dont think that this applies with respect to contributory infringement because it could be raised in any contributory infringement proceedings from technology to bands singing in public bars or hotels to broadcasting. I dont think that the Supreme Court will apply equity to prevent liability because of a greater volume and concurrent likelyhood of copyright works travelling through the system. In fact the maxim ‘equity only helps those with clean hands’ will probably prevent equitable ‘Fair Use’ if another non-infringing use cannot be raised.

Sorry – with respect to the last point I may have misled you by stating “right” instead of “non infringing use”. These two terms are not interchangeable.

Look – I am not afraid of change – I use Grokster (Morpheus actually) all the time. But as a lawyer I know damage when I see it. Before Napster and Peer to Peer the RAI’s of the world were increasing thier volume of works. For the last 4 years this volume has decreased 6 percent on average. What is more, in hi tech countries like ireland (2nd largest software industry and highest broadband rate in the world) the RAI has recorded 11.6 percent drop in volume. This is not lost profit it is a reduction in the number of actual records sold.

The alternative to seeking relief against grokster is going to be altering the architecture of the internet to invade our privacy. That is going to open up far more problems than shutting down Grokster.

Remember not everything is as it appears.

I would prefer to prevent a precedent of legalised invasion into my computer system than continue software that achieves what can be done with a web site.

Of course how many of us are willing to put a reproduction of a copyright work on our personal website on the basis of ‘Fair Use’?

107 would not apply with regards to whatever the copyright holder was authorizing. It would still apply — assuming that they didn’t public domain their work — to the same work with regards to whatever they didn’t authorize.

I’m not familar with the band or what they did, but let’s suppose that they said that anyone could make copies of the songs. If you made a parody, that’s a derivative work, and you still would need fair use. If you’re merely making a copy, you have authorization — there can be no infringement, and thus no cause to rely on a defense.

remember without a licence or other legal right being passed the equitable doctrine of ‘Fair use’ cannot be raised

You have that backwards. Only where no authorization or other statutory exception applies will a court resort to fair use. (Of course you could always raise it, but that’s no guarantee that a court won’t find an easier way to find in your favor, and leave the fair use question unexamined)

To use an analogy, there is a tort of trespass, and there are various defenses to this tort. When you are invited onto land, there can be no trespass, since a necessary element of trespass is that it is unauthorized entry. Only where you are going against the wishes of the landowner might there be trespass, and only if there is trespass are defenses to trespass relevant. You don’t need an excuse when you’ve been invited. When you’re uninvited, that’s when you need an excuse.

I think that this is a case where that will happen – not the least because of the damage that Grokster may do to the IP Industry.

I certainly hope not. Grokster IMO poses no threat of damage to the industry. What it does pose is a threat of change. The VCR radically changed the movie industry. It improved it, creating the rental market and likely beneficial effects on TV as well. But if you feared change, then you were certainly against the Betamax.

Right now, while we await the opinion, Grokster is legal. The industry is doing fine. We can see that the claims of damage are largely hyperbole. There’s no cause to shut Grokster down. Indeed, I think we could radically scale down copyright in term length and in scope, and see little to no harm to the industry, and great benefits to the public.

I also think a consideration of the effect on the potential market for a work being uploaded onto grokster would deny fair use – either because it reduces the profitability or in the case of freely distributed works it increases the recognition and saleability of those works. –> This is not like a xerox machine.

So what? Under Betamax, only a potential substantial noninfringing use is needed. That doesn’t require fair uses. Just noninfringing ones. If people can lawfully share Wilco songs via Grokster, then there’s one right there. There’s a ton of public domain works that potentially might be shared with Grokster. That’s got to be substantial.

Changing the Betamax rule, though, that’s not a good plan.

Yes there is a lot to fair use but it is a misnomer to consider any ‘public document’ (what ever that may be) as fair use.

WTF is a public document? I don’t recall using the term. You mean like a law?

sorry I have been offline in the last week – work has been crazy.

To Josh Stratton

I understand the Betamax attention to the right of fair use in certain documents. However, all the fair uses in the amici curae brief appear to surround artists sharing thier work for remixing. It appears to me that although there is no financial profit from such a venture there is certainly a non financial gain in the commercial asset of goodwill and reputation.

Take for example the band Wilco who released thier works for free. Due to the public attention given to thier works they became famous and were able to sign a bigger record deal. In this sense section 107 of the Copyright Act would not apply – would it??

I also think a consideration of the effect on the potential market for a work being uploaded onto grokster would deny fair use – either because it reduces the profitability or in the case of freely distributed works it increases the recognition and saleability of those works. –> This is not like a xerox machine.

I agree that licensure may not be the only standard but remember without a licence or other legal right being passed the equitable doctrine of ‘Fair use’ cannot be raised and the only arguments available would relate to statutory rules.

Yes there is a lot to fair use but it is a misnomer to consider any ‘public document’ (what ever that may be) as fair use. A better term for the concept (as used in my home jurisdiction of Australia) would be fair dealing.

I also note the dissent of Blackmun J in Betamax that states that courts should not be afraid to change the interpretation of the law for new technology. I think that this is a case where that will happen – not the least because of the damage that Grokster may do to the IP Industry.

PS I must note that on the weekend I myself was guilty of downloading the Star Wars movie from Grokster. I couldnt help my self. I just remember thinking to myself – why should I ever go to the movies again? (Except despite having ADSL downloading a hi-res version was almost as expensive as buying a movie ticket)

Till next time

I don’t think you can’t effectively revoke the offer. When the work is licensed to public, the license states:
“Each time You distribute or publicly digitally perform the Work or a Collective Work, the Licensor offers to the recipient a license to the Work on the same terms and conditions as the license granted to You under this License.”

Hence: if the work is out there you may stop distributing it, but you can’t effectively revoke it. People who receive it from some licensee still have the right to receive the work with same License. Of course if no one distributes or performs the work, there are no recipients. In such case the right holder would still risk that there are original recipients out there who are allowed to put the content online with CC license -Thus making the content available with CC license again.

>what happens a year later if I get an offer by a good
> indie label to release the song as a single?

You take it, of course! 😉 As the copyright holder, you can sign any number of non-exclusive contracts, and you can release copies of your work under any number of different licenses.

>Since I can’t revoke the license,
> and wouldn’t know how to find who was distributing the song for free,

Well, you would be able to find some of them – the ones who were were listed on google or other search engines, the ones who had emailed you thanking you for making the song available, the ones on your mailing list(if you don’t have a mailing list yet, you should), etc…

> haven’t I basically killed future sales of the song now that tons of people got it for free

Some of those tons of people, I hope, would like your music enough to become fans; and fans want to hear your future music, and are willing to pay for it.

> and those distributing it non-commercially (ie: not selling it for profit) continue
> to have the right to do so?
>Who’s gonna pay for something they can legally get for free?

Quite a few people, especially if you make it clear that this is how you will be able to make more music, and/or if you add some new material, and/or a if the “good indie label” helps produce a nice package for your songs.

> Maybe I didn’t give up commercial rights…but it sounds like I may as well have. Or
> did I misunderstand something?
> I’m not so sure CC is a good thing when it comes to music and you’re looking to earn
> money from it.
> I can easily get my music heard by streaming it securely on my website,

How many people come to your website? How much money do you have available to pay for bandwidth for all that streaming?

> on webcasts around the internet, and college radio without allowing downloads or
> copying.

You can do all these things without allowing *legal* copying, but don’t make the mistake of thinking that will prevent *illegal* copying from being done. It has been done since at least the time of home cassette players, and will still go own independent of CC, or you.

> I know that pisses off people who want “something for nothing”, but I don’t want to be
> paid “nothing for something”.
> What if someone picks my song to play as background music on a website that
> supports racist views, which I and most people oppose? With CC, he can just take the
> song, use it legally, and I have no legal recourse if I even find out he’s using it. Or did I
> misunderstand something?

Even with “All Rights Reserved”, you can’t prevent bad uses of your work. If someone with violently racist views were to put your music on their headphones, then go out and brutally beat up some people, then email their racist friends saying “Hey, Pete’s new album is the best for kicking the s*it out of . You should all go out and buy his music and listen to it while you attack people.”, you could do nothing to stop them.
However, I can understand why you had the illusion that traditional copyright use would save you from bad uses of your work, since it does allow you to restrict various actions which, practically, prevent many uses of your work without your permission. It prevents someone from combining your music to some other piece of music. It prevents someone from playing your music in a public performance, although playing your music to a few friends(or fellow homicidal maniacs) is totally allowed. It prevents someone from duplicating the CD or webcast or wax cylinder your music is recorded on, except for certain circumstances (such as criticism, i.e. showing why you, personally, are a bad (or great) artist). These restrictions do encourage the illusion that traditional copyright use can prevent bad uses of a work, however, this is false.

> I would rather have someone ask me first so I could decide whether or not I want them
> using my material for such purposes rather than just say, “Here, take it.” to everyone
> who passes by.

> If someone can indicate how my statements could be incorrect, I really would like
> direction…honestly. I’m not at all closed to assistance.

That’s why I’m responding. I thank you for being honest with your statements, and giving me a chance to practice explaining these issues.

> As it stands, I think CC has good intentions, but mostly benefits those looking to use
> material…not those who create it.

One idea underlying CC is that many who use material *are* those who create it. Sampling artists are a recent example; the many wonderful re-workings of another composer’s theme in classical music are an older example. Collage artists are another.

> I understand that the CC organization believes otherwise, but I can’t see how
> musicians benefit from this in a way that outweighs the possible dilemas. Yes, I’m
> aware that a former RIAA exec supports it…I read the Billboard article. Just because he
> has credentials doesn’t mean he speaks for everyone. And yes, I’m aware that some
> small record labels and music websites support it and that some even use it as a
> marketing tool. I’m not looking for examples as much as legal facts relating to CC and
> the specific issues I mentioned here.

I hope this answered at least some of your questions. I apologize for the lack of links/references or specific legal facts; hopefully another reader of the blog will be able to add these. Please let me know your thoughts and response, and any more questions. Thanks again for being willing to ask.

I’m not so sure CC is a good thing when it comes to music and you’re looking to earn money from it. I can easily get my music heard by streaming it securely on my website, on webcasts around the internet, and college radio without allowing downloads or copying. I know that pisses off people who want “something for nothing”, but I don’t want to be paid “nothing for something”.

What if someone picks my song to play as background music on a website that supports racist views, which I and most people oppose? With CC, he can just take the song, use it legally, and I have no legal recourse if I even find out he’s using it. Or did I misunderstand something? I would rather have someone ask me first so I could decide whether or not I want them using my material for such purposes rather than just say, “Here, take it.” to everyone who passes by.

If someone can indicate how my statements could be incorrect, I really would like direction…honestly. I’m not at all closed to assistance. As it stands, I think CC has good intentions, but mostly benefits those looking to use material…not those who create it. I understand that the CC organization believes otherwise, but I can’t see how musicians benefit from this in a way that outweighs the possible dilemas. Yes, I’m aware that a former RIAA exec supports it…I read the Billboard article. Just because he has credentials doesn’t mean he speaks for everyone. And yes, I’m aware that some small record labels and music websites support it and that some even use it as a marketing tool. I’m not looking for examples as much as legal facts relating to CC and the specific issues I mentioned here.

There’s the lesson: Always proofread.

P2P networks, even if the Supremes go against Grokster, are here to stay. There is literally no way to get rid of them. How can you enforce tens of millions of people? It’s no possible. Furthermore, how can you enforce per program? Another one will pop up, and on and on and on.

And have the threat of lawsuits been staving off the tide of downloaders? Well, no, not really. In fact, according to some data, the population of P2P users has almost doubled since January of 2003 (and that’s not including BitTorrent, which has estimates planting a third of all bandwidth on the internet as using it).

There really is no way to stop it.

Thus, I think the answer to our problems lies in trying to find an equitable solution, not bitching and moaning about perceived wrongs on either side of the table. Obviously, Commons Music believes it has the solution, but we’re not going to come up with creative and thoughtful ways to provide a way into new media while talking over each other like a bunch of children (“He copied that work!” “Oh yeah, well he’s stealing my freedom! Nya, nya, nya-nya-nya!”).