This show takes a shot at explaining the similarities between the landmark Universal vs. Sony (Betamax) case of 1984 and the current MGM vs. Grokster case that went in front of the Supreme Court last summer.
I only touch upon it briefly in my show. There's a more complete explanation on the website.
The point then, and now, is that, historically, in this country, we choose to criminalize the misuse of a technology, rather than criminalizing the technology itself. Guns, for example, are only made for killing. Killing and maybe target practice. It's what they do. Depending on the circumstances surrounding when the killing takes place, such killing is legal or not. But do we hold gun manufacturers responsible for when gun technology is misused? Of course not. The concept is comical. In fact, legislation was recently passed to protect gun manufacturers from such liability. According to White House Press Secretary Scott McClellan, even President Bush "believes that the manufacturer of a legal product should not be held liable for the criminal misuse of that product by others."Unfortunately, when the Supreme's had a chance to decide MGM vs. Grokster on these grounds, it chose to do something else - to avoid these issues entirely, and create a new kind of indirect infringement: active inducement. Active Inducement takes place if someone intends to make another person infringe and then takes active steps to encourage it.
The court basically said there were two types before (contributory and vicarious) and now there's a new, third kind, called "inducement." That's what the court sent back to the Central District of California Court (9th Circuit) to determine if the defendants were actively inducing infringement.
So there used to be just two kinds of "indirect" infringement, vicarious and contributory.
"Vicarious" is when you're supervising people and making money from it, like at the Flea Market, if the owners of the Flea Market knew that stolen goods were being sold there. (A CA court ruled that Napster did this.)"Contributory" infringement is where you're supplying the means with knowledge that it will be used illegally. Like if I rented a bunch of CD burners to a bootleger and knew what he was going to do with them. Now, after Grokster, there's a third, where I intend to make you infringe and take active steps to encourage it. That's the test laid out by the decision...
Note: Although there was a development last week in MGM vs. Grokster, where Grokster settled, agreed to shut down, and agreed to pay $59 million in damages, Grokster was not the only named defendant in the case. StreamCast, Sharman Networks (distributor of Kazaa), and the founders of Kazaa are still in litigation.
Here is the full text of the article in case the link goes bad:
http://www.mondoglobo.net/thecommons/?p=11
A Better Introduction to Grokster - A Modern Day Sony Betamax Case
In this week's installation of The Grokster Chronicles, I will explain how the Grokster case is really just a modern day revisiting of the principles of the historical Betamax case. The "Betamax" case refers to Universal vs. Sony, in which the Supreme Court decided that a company was not liable for creating a technology that some customers may use for copyright infringing purposes, so long as the technology is capable of substantial non-infringing uses. Said another way, the court decided that, when a technology has many uses, the public cannot be denied the lawful uses just because some (or many or most) may use the product to infringe copyrights.
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The court weighed the substantially positive noninfringing fair use right of a family being able to timeshift a program and watch it together later against the potential misuse of a person making 300 copies of the television program and selling them (piracy). Keeping this definition in mind, it becomes easier to understand how such judgements clearly apply to the Grokster case. Within the millions of files traded over a Kazaa-based P2P network, some infringe, while others clearly do not.
The point then, and now, is that, historically, in this country, we choose to criminalize the misuse of a technology, rather than criminalizing the technology itself. Guns, for example, are only made for killing. Killing and maybe target practice. It's what they do. Depending on the circumstances surrounding when the killing takes place, such killing is legal or not. But do we hold gun manufacturers responsible for when gun technology is misused? Of course not. The concept is comical. In fact, legislation was recently passed to protect gun manufacturers from such liability. According to White House Press Secretary Scott McClellan, even President Bush "believes that the manufacturer of a legal product should not be held liable for the criminal misuse of that product by others."
Unfortunately, when the Supreme's had a chance to decide MGM vs. Grokster on these grounds, it chose to do something else - to avoid these issues entirely, and create a new kind of indirect infringement: active inducement. Active Inducement takes place if someone intends to make another person infringe and then takes active steps to encourage it.
The court basically said there were two types before (contributory and vicarious) and now there's a new, third kind, called "inducement." That's what the court sent back to the Central District of California Court (9th Circuit) to determine if the defendants were actively inducing infringement.
So there used to be just two kinds of "indirect" infringement, vicarious and contributory.
"Vicarious" is when you're supervising people and making money from it, like at the Flea Market, if the owners of the Flea Market knew that stolen goods were being sold there. (A CA court ruled that Napster did this.)
"Contributory" infringement is where you're supplying the means with knowledge that it will be used illegally. Like if I rented a bunch of CD burners to a bootleger and knew what he was going to do with them. Now, after Grokster, there's a third, where I intend to make you infringe and take active steps to encourage it. That's the test laid out by the decision.
The trouble with the supremes defining a new type of indirect infringement is that it leaves the questions of "vicarious" and "contributory" infringement wide open, as well as the test of "substantial non-infringing uses" given to us in the Betamax decision. (So no one knows what the rule would have been on those.)
The opinion also contained two "concurrences." What are concurrences? Well, in a formal ruling, there is a majority opinion which lays down the law. It includes what is called a "holding" -- what the court held the law to be. Then there are secondary opinions included in the ruling when judges want to add commentary. They are either "concurrences" (which agree with the holding but perhaps for different or additional reasons) or "dissents" (which disagree with the holding and reasoning of the majority).
Typically, with concurrences, they are sections that the majority didn't support. In Grokster, you had the majority 9-0 but each concurrence only had 3 votes. If either had gotten 5 votes, it would have been part of the majority. Although these two concurrences conflict with each other, the judges writing them agreed generally on the opinion (unanimously in fact).
So, for the two concurrences that received three votes each, one said that the Sony Betamax test of "substantial non-infringing uses" was more than satisfied. The other said that Sony should be revisited and overturned.
So you may say "well, it would certainly be hard to prove that, until you look at the decision a bit closer. In Grokster, the supreme court said that even using the name "-ster" as in Grokster showed intent to induce infringement, because it was similar to Napster.
The tech community knows that "ster" doesn't have this kind of meaning at all. It's more like a name for doing fun things -- Friendster, a social network and Feedster, and RSS syndication feed service, certainly have nothing to do with contributory copyright infringement. Google's Gmail even uses "ster" as their default name suggestion when someone tries to get an email address and their name on its own is taken, rather than applying a number to the end.
This kind of confusion about technology and computer culture means it will be easier to sue companies and imply that they are encouraging people. Then its costly to defend -- because you're going to have to go to trial every time, costing you millions. You may win eventually, but who cares by then, because you're out of business.
And what does this mean to the average consumer? It means that you're not going to get as much new cool technology, and when you do get it, it's going to cost you more because of the added legal risks now associated with software development in general.
Note: Although there was a development last week in MGM vs. Grokster, where Grokster settled, agreed to shut down, and agreed to pay $59 million in damages, Grokster was not the only named defendant in the case. StreamCast, Sharman Networks (distributor of Kazaa), and the founders of Kazaa are still in litigation.
Special Thanks to Jason Schultz at the EFF for double checking the technical accuracy of my legal analysis.
Songs
1.
Slipping Away v. 2.0 Studio
by Lisa Rein.
http://www.lisarein.com/slippingaway2.0.html
Available under an Attribution 1.0:
http://creativecommons.org/licenses/by/1.0/
2.
one moment (cdk play it cool mix)
by cdk
http://ccmixter.org/media/files/cdk/2884
Available under the: Attribution Non-commercial Share Alike v 2.5 license:
http://creativecommons.org/licenses/by-nc-sa/2.5/
uses samples from:
midnight bliss dub samples by cdk
Moment of Green by Antony Raijekov
Blues and misc by Burnshee Thornside
3.
"Wake Up" from The Time is Now
by Inna Crisis
http://www.jamendo.com/album/352/
Attribution Non-commercial Share Alike v. 2.0:
http://creativecommons.org/licenses/by-nc-sa/2.0/
4. Theme Song to this show - “Unison” by dissent - from the upcoming Primal Deconstruction CD/LP. The track and an in has been pre-released by Wide Hive Records under a Creative Commons Attribution-Non-commercial-No Derivs license. http://www.widehive.com/unison.html
5.
Patrick Fitzgerald Announcing the Scooter Libby Indictments
Scoop
http://www.scoop.co.nz/stories/HL0510/S00315.htm
Resources
1. EFF's page on the Grokster case:
http://www.eff.org/IP/P2P/MGM_v_Grokster/
2. EFF's page on the Betamax case:
http://www.eff.org/legal/cases/betamax/
3.
Shoot someone? Not Smith & Wesson's fault. Copy a movie? Grokster's fault.
by RadicalRuss for the Daily Kos.
http://www.dailykos.com/story/2005/7/26/2160/13925
Google has a new feature now that will let you add metadata about your content to its search engine. (I think :-)
I saw Stephen Hawking last night at the Paramount Theatre in Oakland, California.
It was my birthday, and I couldn't think of any place I'd rather be -- hanging out with one of my heroes thinking about the birth of the Universe.
His talk was really cool. He postulated upon the question of "when the universe began," and likened it to trying to go "further south than the south pole." He also joked about being imprisoned by the Inquisition for daring to ponder the question -- an act one pope or another likened to questioning God.
The Q and A portion of the lecture was particularly neat. Here are some of the questions and answers that I could remember. (I wrote down some notes right after the show while they were fresh in my mind -- so two of these are not exactly word for word - but damn close - and the other two quoted answers are exact.)
Q: What do you think of President Bush's plan to send a man to the moon?S.H.: "Stupid. Robots are cheaper to send, and you don't have to bring them back."
Q: What do you think of the United States' position on Stem Cell Research?
S.H.: England and most of the developed world has the view that there are many opportunities in Stem Cell Research. The U.S. will fall behind.
Q: If you had a chance to meet Issac Newton or Marilyn Monroe, which would you pick?
S.H.: Marilyn. I heard Issac was a disagreeable sort.
Q: What's your IQ?
S.H.: "I have no idea." People that care about IQ's are losers.
Updated 11-12 - I almost forgot my favorite question:
Q: You were depicted on the Simpsons. How did you like that?
S.H.: "I think the Simpsons is the best thing on American Television."
He's got a new book out I can't wait to read, A Briefer History of Time.
Update - 11-11-05 - OK I haven't received one email from you guys - is it that you don't have time? That you can't email movies from your phone? That you think your movies aren't good enough? :-)
No seriously, just shoot some video and email it to "demo@vemobile.com" and then wait to get the SMS message back, retrieve it, and email me at "lisa@lisarein.com" with the Video ID number. -- thanks!
I've been messing around with Type Pad's new video upload feature, courtesy of Video Egg, but my friends close by with camera phones are having trouble emailing their videos to me...
So I'm just going to put out a general call to my readers to please email their camera phone video to demo@vemobile.com, and then email me the "Video ID" they will SMS back to you. Then I can enter it into my test blog interface. (See my test blog here to bring up the clip.)
So far, I'm both excited and discouraged by this video upload implementation. It's definitely exciting for Type Pad to offer this kind of service -- a packaged blogging and video upload service.
It's the right idea, for sure. But there are a few annoying details of the implementation.
For instance, only clips of two minutes or less are permitted (which greatly reduces the probability of my using the service, to be honest), but that's not my main concern, which is this; I have a problem with the use of Flash as the delivery format, because it effectively kills any hope for reuse of the video footage.
In addition, Video Egg is compressing the video before it wraps it up in Flash, and the effect it has on the video is quite significant.
Check out the original version of this clip (Wendy Seltzer from Foo Camp 2003). Then compare it to the VideoEgged version on my typepad blog.
Nevertheless, this development is quite significant, and I'm looking forward to testing out the Mobile upload feature. I had to borrow a PC from a friend, since Type Pad's Video Egg plug-in doesn't work on the Macintosh platform yet. There are some features I haven't tested yet, like the Digital Camera upload, or the Mobile Phone upload, which I hope you're going to help me sort out today and tomorrow (while I've got my friend's PC laptop close by).
Thanks in advance for sending me some great videos!
lisa
It's my first new post for O'Reilly's Digital Media website:
How To Shoot Broadcast Quality Music Videos On A Camera Phone
This is a pretty neat story from beginning to end -- a lesson in what can be accomplished when someone sticks to a vision and sees it through to the end. Right on to Blast Records and The Presidents of the United States of America (P.U.S.A.) for taking a chance too!
Check out the Making Of video that Grant let me host, too.
This development is more than a novelty. It's a working demonstration of the natural artistic progression towards the integration of new mobile video technology within existing art forms.I predict that it will soon be commonplace for bands to shoot mobile phone-based video of interviews, practices, performances, songs-in-progress, or whatever, and post it to their websites...
Mobile phone cameras can only record at 1/3000 of standard broadcast quality, and don't capture movement very well. In addition these phones only recorded at 10 frames per second, even though the manufacturer had promised that they'd record at 15 fps.
During the shoot, the phones were so temperamental that they'd just turn off at any point without warning, so Grant had the band play the song 24 times at half speed in order to provide enough footage to edit together one good take of the song.
In the "No way, this can't be happening in America" department, we have good citizens David Ritz and Ed Falk being sued for saying the truth about Jerry Reynolds being a spammer on a usenet group over 6 years ago.
You can download a zip of all the legal docs here.
Here's how Mary Hodder explains it:
He's apparently filed (complaint here) SLAPP suits against two people, David Ritz and Ed Falk, who found that in the late 1990's, he was the largest spammer online (email wasn't so big then, but he had the largest porn spam operation on UUnet, with Sexzilla and Netzilla which were registered to Jerry Reynolds). And now he's using C&D's and these lawsuits to get whatever traces of the information that documents his spam and porn operation off of Google including search results and groups. He denies owning the site, btw, even though he was listed as administrative contact.Reynolds has even gone so far as to subpoena Ritz' and Falk's computers and put a gag order on one, but the other one is out of jurisdiction (the suit is in North Dakota, though Falk lives and does business in CA).
Tomorrow, Ed Falk has to give a copy of all his computer harddrives to lawyers, who are still fighting over the jurisdiction issue. I think though that if this case went before a judge in CA, it would immediately be dismissed. All the evidence shows Reynolds was the SpamKing in 1999. Unfortunately, though, the case won't be resolved before Reynolds costs these guys thousands of dollars, and not before he has stopped at least Ritz from speaking out about the case.
The most recent lawsuits and C&D's have been filed by John Doe's or by Reynold's company, Sierra Corporate Designs.
The thing that is so despicable about this is not that he was once the biggest spammer and has moved on to other sorts of (legitimate?) business, but rather, that he would use the courts to have a few pieces of information about his old spam work removed, as if he were trying to rewrite history and squash people's rights to free speech. He was tracked as a spammer early in the 90's, but hit a peak in 1997 with porn spam, at least as far as UUNet / Usenet was concerned. He actually helped kill that community by turning it into a garbage heap for spam. And now he wants to evade responsibility for it. And in the process, cost Ritz and Falk a lot of money and time, defending the truth. Disgusting!
Read more about the lawsuit here.
This is precious. Arnie tries to separate himself from the other Repubs, but don't let him fool you.
He conspired with Kenneth Lay on the fake blackouts of 2001, and he's doing his best to tow the Republican line for Bush.
Remember to vote NO on everything this Tuesday, November 8!
This is from the October 2, 2005 program of
60 Minutes.
This contains the "Military-Industrial Complex Speech" by Dwight D. Eisenhower in 1961.
Andy Rooney's really a stand up guy! One of the few on television these days to have the courage to tell it like it is.
Video - Andy Rooney On The Military Industrial Complex Taking Over The U.S. (6 MB)
Audio - Andy Rooney On The Military Industrial Complex Taking Over The U.S. (MP3 4 MB)
Dwight D. Eisenhower:
"We must guard against the aquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex. The potential for the disasterous rise of misplaced power exists, and will persist."
Andy: "Well, Ike was right. That's just what's happened."
Complete Transcription:
I'm not really clear about how much a billion dollars is. But the United States, our United States, is spending five billion, six hundred million dollars a month ($5,600,000,000.00) fighting this war in Iraq that we never should have gotten into. We still have 139,000 soldiers in Iraq today. Almost 2,000 Americans have died there. For what?Now, we have the hurricanes to pay for. One way that our government pays for a lot of things is by borrowing from countries like China. Another way the government is planning on paying for the war and the hurricane damage is by cutting spending for things like medicare perscriptions, highway construction, farm payments, Amtrak, national public radio, loans to graduate students. Do these sound like things you'd like to cut back on to pay for Iraq?
I'll tell you where we ought to start saving, on our bloated military establishment. We're paying for weapons we'll never use. No other country spends the kind of money we spend on our military. Last year, Japan spent $42 billion dollars, Italy spent $28 billion dollars, Russia spent only $19 billion. The United States spent $455 billion. We have 8,000 tanks, for example. One Abrams tank costs 150 times as much as a Ford stationwagon. We have more than 10,000 nuclear weapons. Enough to destroy all of mankind. We're spending $200 million dollars a year on bullets alone. That's a lot of target practice.
We have 1,155,000 enlisted men and women, and 225,000 officers. One officer to tell every five enlisted soldiers what to do. We have 40,000 Colen and 870 generals.
We had a great commander in WWII, Dwight Eisenhower. He became President, and on leaving the White House in 1961 he said this:
"We must guard against the aquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex. The potential for the disasterous rise of misplaced power exists, and will persist."Well, Ike was right. That's just what's happened.
The U.S. Spends 455 billion dollars a year on the military.
Next Tuesday, November 8, California is having a Special Election so that our Governor Arnie can try to pass a bunch of crazy, arguably unconstitutional, legislation.
This is his way of attempting to surpass the checks and balances of our State Senate to quickly enact plans of actions that would never fly, were the public and legislators given the chance to learn about the details.
His first trick is having a Special Election in the first place - few voters actually show up to vote for those. Only the peeps already in Arnie's corner are planning on showing up to usher in their bogus legislation.
The solution is quick and easy - show up and vote NO on everything!
Thanks,
lisa
I just uploaded my fifth SFTC podcast.
This show features tracks from Wired's Creative Commons CD DJ Dolores, Dan The Automator, The Beastie Beastie Boys, and Thievery Corporation. Everything is available under CC's Sampling Plus License.
More music, less talk, this show. And starting next week, all of these shows will be available in a "yapping free" format. I'm doing this because, it seems to me, that after you hear the spoken portion once or twice, you'd probably be done with it. While a music-only version can live on in your Ipod...FOREVER! (crescendo...echo...fade out...)
