MGM v. Grokster
I'm a bit of a law junky. I love the permutations of logic that go into suits, particularly the major precedent cases that end up before the Supreme Court. I like the idea of nine extremely intelligent but ideologically varying people interrogating the arguments presented, the very image of one person standing before the Supreme Court to argue a particular point.
So I've been thinking about the MGM v. Grokster case, for which I have to thank Mark D. and SJ for turning me onto. If you haven't been following the case, there's a fair assessment of recent Supreme Court arguments here. Basically, 28 of the largest music and film/TV companies (Sony notably excluded) are suing the makers of Grokster, KaZaa, and Morpheus over the propensity of their software to be used in copyright-infringing file sharing. MGM, et al, are basically arguing that because the companies in question could have exercized some control over the use of their software by including technology that reads digital fingerprints, etc., and because they admittedly designed their software to be blind about its use in order to make a profit on its users, they are engaging in vicarious infringement of copyrighted material. That is, according the MGM, Grokster knew that people would use their software to illegally share copyrighted material, and rather than maintaining a central database of these transactions in the way that sank Napster (which was successfully sued because it maintained a database of files that made them clearly aware of how their software was being used.), the companies turned a winking eye at these infringements while still making a profit on the transactions.
The Supreme Court heard oral arguments on March 29, and it will likely be months before there's a ruling on the issue, but I think it's fair to say that this is the kind of landmark case in the entertainment industry that comes along only every few decades, and ends up determining huge material changes in the way we consume culture. I find myself thinking about United States v. Paramount, et al., for example, which broke the studio monopoly on the film industry. This case could easily carry the same kind of stakes for the entertainment industry.
Given my politics, one would normally expect me to come down unequivocally on the side of Grokster, et al, and argue that they can not be expected to anticipate how their software would be used. But it seems like they pretty clearly did know how their software would be used, and so they engineered it in a way that would avoid the problems Napster ran into. If we allow for intent in criminal cases, why not in a case like this? I realize there is more complexity to the issue, but in truth, even though I agree that information should be free, I am at heart a little skeptical about file-sharing in general. I don't do it very often, because part of me can't get around the fact that I'm accessing something that I would otherwise have to pay for, in a way that violates copyright.
I'm aware of the many counterarguments about the vagaries of copyright possession, how money is actually made in the entertainment industry and who makes it, and the many subtextual concerns that go into this, most significantly being the vastly disproportionate profits made on a heavily marketed commodity backed by a major studio or label and how the cost of production is so often elevated by astronomical pay rates for entertainment stars. I agree that the anti-piracy ad campaigns made by studios and labels are disingenuous at best and downright deceitful at worst. I also agree that the entertainment corporations are at least partially to blame in this predicament for holding onto business strategies that simply ignore the realities of how people consume entertainment these days (which is one of the reasons I think of the Paramount case). I also think file-sharing often benefits small companies more than large companies, as it's a way for people to find and try out music, films, etc., that don't benefit from the kind of saturation marketing that the majors create.
But at the end of the day, I still think we're engaging in a collective winking of the eye when it comes to file sharing. Given all of the above counterarguments, downloading copyrighted material without paying for the privilege is still a violation of copyright law.
It doesn't mean I'm likely to stop doing it anytime soon.
So I've been thinking about the MGM v. Grokster case, for which I have to thank Mark D. and SJ for turning me onto. If you haven't been following the case, there's a fair assessment of recent Supreme Court arguments here. Basically, 28 of the largest music and film/TV companies (Sony notably excluded) are suing the makers of Grokster, KaZaa, and Morpheus over the propensity of their software to be used in copyright-infringing file sharing. MGM, et al, are basically arguing that because the companies in question could have exercized some control over the use of their software by including technology that reads digital fingerprints, etc., and because they admittedly designed their software to be blind about its use in order to make a profit on its users, they are engaging in vicarious infringement of copyrighted material. That is, according the MGM, Grokster knew that people would use their software to illegally share copyrighted material, and rather than maintaining a central database of these transactions in the way that sank Napster (which was successfully sued because it maintained a database of files that made them clearly aware of how their software was being used.), the companies turned a winking eye at these infringements while still making a profit on the transactions.
The Supreme Court heard oral arguments on March 29, and it will likely be months before there's a ruling on the issue, but I think it's fair to say that this is the kind of landmark case in the entertainment industry that comes along only every few decades, and ends up determining huge material changes in the way we consume culture. I find myself thinking about United States v. Paramount, et al., for example, which broke the studio monopoly on the film industry. This case could easily carry the same kind of stakes for the entertainment industry.
Given my politics, one would normally expect me to come down unequivocally on the side of Grokster, et al, and argue that they can not be expected to anticipate how their software would be used. But it seems like they pretty clearly did know how their software would be used, and so they engineered it in a way that would avoid the problems Napster ran into. If we allow for intent in criminal cases, why not in a case like this? I realize there is more complexity to the issue, but in truth, even though I agree that information should be free, I am at heart a little skeptical about file-sharing in general. I don't do it very often, because part of me can't get around the fact that I'm accessing something that I would otherwise have to pay for, in a way that violates copyright.
I'm aware of the many counterarguments about the vagaries of copyright possession, how money is actually made in the entertainment industry and who makes it, and the many subtextual concerns that go into this, most significantly being the vastly disproportionate profits made on a heavily marketed commodity backed by a major studio or label and how the cost of production is so often elevated by astronomical pay rates for entertainment stars. I agree that the anti-piracy ad campaigns made by studios and labels are disingenuous at best and downright deceitful at worst. I also agree that the entertainment corporations are at least partially to blame in this predicament for holding onto business strategies that simply ignore the realities of how people consume entertainment these days (which is one of the reasons I think of the Paramount case). I also think file-sharing often benefits small companies more than large companies, as it's a way for people to find and try out music, films, etc., that don't benefit from the kind of saturation marketing that the majors create.
But at the end of the day, I still think we're engaging in a collective winking of the eye when it comes to file sharing. Given all of the above counterarguments, downloading copyrighted material without paying for the privilege is still a violation of copyright law.
It doesn't mean I'm likely to stop doing it anytime soon.
posted by L&D at
2:06 AM
2 Comments:
Random thoughts (sorry, this turned out to be longer that my usual blog posts):
I think the most interesting comparison is to the Sony Betamax case. I think I read somewhere that the studios actually make more money from DVD & tape sales/rentals than they do from feature films. It all started, of course, with technology (the beta VCR) that media companies attempted to quash. I wonder if file sharing could ultimately benefit the studios the same way? I know they are currently experimenting with downaloadable movies, video on demand, etc, but that's a bit different than the file sharing model--is there ultimately an advantage for studios in file sharing that they don't see?
Of course, one major difference between Grokster and a VCR, is that a VCR, and even a DVD, are really shitty ways to copy and distribute pirated movies. Grokster allows for many users to instantly grab a copy of the media file and redistribute it.
That said, I still hope that Grokster, et al. win the case. Neither side disputes that copyrighted material is changing hands, and I definitely think that the file sharing companies' business model depends on it, but a strong ruling against Grokster could have wide reaching effects. I have some serious doubts about the "intent" argument. For instance--Comcast advertises that their Broadband service allows faster downloads of music and video--does that mean that they have the intent to let subscribers download copyrighted materials?
Comcast, and other broadband providers definitely knew about illegal file sharing and did nothing about it--in fact, I'll argue that their profits and demand for their services went through the roof becasue of it. Or take the iPod. Why doesn't it ONLY play music with copy protection? Why is it 20-40GB in size? Did Apple realistically think that users would spend $9,999 at iTunes to fill up their iPod with copy protected music, or did they (hmmm) think that many people already had a lot of music that they could load onto the iPod already?
The problem I have with the intent argument is where does it end?
Also, one reason for disliking the record companies that "Live and Direct" left out is all the market fixing and artificial inflation of CD prices over the years. File sharing would still have caught on, don't get me wrong, but it could have been less rampant if a CD had cost $5 or less for the past 10 years, instead of $15.99.
The funny thing is that Nicholas Negroponte warned that this would happen in 1995 in Being Digital. He didn't specifically mention file sharing (if I recall), but he mentions lots of media people who just don't get that digital means infinite reproducablity in lots of different formats.
By
Tin Foil Hat, at 11:45 AM
It's not that I'm siding with MGM, et al, so much as I think we engage in some really selective ethical reasoning when it comes to this area. As I mentioned in my original post, I'm very aware of the ways in which the studio-and-record-labels' arguments about how piracy is immoral or unethical are ridiculously hypocritical. While I used the general example of star salaries, this was a quick way for me to point out the fact that a main reason that CDs and movie ticket prices have outstripped inflation by a long-way is because of the greed of a handful of people, mostly meaning studio and label executives and a small circle of A-list stars. Piracy is far from the leading reason that prices have increased, but it's easier to try to solve that problem than it is to fight salary inflation. I'm aware of all this, and to quote Q-Tip, "Music business lesson number 480, record company people are shady."
Nevertheless, just because the major labels and studios are marking up their product doesn't somehow justify our stealing it, at least in the legal sense. I suppose you can argue that it does give us moral justification, but come on people, this isn't Sherwood Forest, and we're not Robin Hood and his merry gang. We're taking the music because we want it, not because we're striking a blow for fairness. And like I was always told in Sunday school, two wrongs don't make a right.
I do think TFH is correct in questioning my intent argument, on the grounds that it opens up all sorts of other potential suits, and I think this was what the 9th Circuit court was trying to prevent in affirming the LA district court's ruling. But I would also argue that there are substantive differences between Comcast increasing it's bandwidth or IPod offering large amounts of memory and what Grokster did. Both Comcast and IPod have multiple uses beyond downloading copyrighted material. But more importantly, Grokster has admitted that they engineered their software so as to not duplicate Napster's error. What this says pretty clearly is that they could and did predict how their software would be used and that they attempted to avoid an "official" awareness of each possible infringement, while still benefiting from it. This seems to come pretty close to the definition of vicarious infringement, and I think this is why the Supreme Court Justices were so interested in this detail of the case.
As I said at the outset here, I actually don't side with MGM, et al. First, because I think they're greedy fucks. And believe me, I've spent long enough time studying the entertainment industry to be keenly aware of just how deep that greed goes. Second, and perhaps more significantly, I think the entertainment industry, particularly the music labels, are really out-of-sync with how people consume entertainment commodities. By holding onto the expensive-star/expensive-CD model, their escalating their own costs to the point that it's becoming difficult for them to do business. But rather than upgrading their technology, their trying to litigate the problem away. Not only do I think this is futile, I think it ultimately impedes creativity by putting capital into the wrong places. Clearly, the entertainment industry is going to have to change it's ways, but given the current conservative business climate in America, I think a change is unlikely to happen unless it's forced upon them. So ultimately, I hope that Grokster, et al, do win. Not because I think their case is fair and reasonable, but because I think the changes it will hopefully bring about are necessary and actually in the best interests of the entertainment industry longterm.
By
L&D, at 12:09 AM
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