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MGM v. Grokster: Which Side Are You On?

By Jeralyn, Section Court Decisions
Posted on Mon Mar 28, 2005 at 04:06:09 PM EST
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The New York Times says MGM v. Grokster is not really a David v. Goliath story but one about the right of "individual creators of music, movies and books" to get paid. Sony's BMG Chief Andrew Lack presents that side here. Also opposing Grokster and the other P2P file sharing networks is the Recording Artists Coaltion. Here's its March 1 press statement (pdf).

Electronic Frontier Foundation has the other side. This site has it in plain English.

At issue is a 9th Circuit opinion holding vendors cannot be held liable users who use their products for copyright infringement provided the products can be used for significant noninfringing (legal) uses. The Times reports,

The technology community has rallied to Grokster's defense. Its most radical members argue that "information wants to be free" online and disparage the whole idea of intellectual property. A more modest argument, and one Grokster relies on in court, is that if it loses, there will be a chilling effect on technological innovation.

Here's more on the case. Here too. I'm torn. I'm on the side of the artists getting paid for their work. I'm not that worried about the chilling effect on technological advancement. But in analagous cases, like whether gun manufacturers should be held liable for deaths caused by people who kill using guns, I'm against assigning such responsibility to anyone but the individual perpetrator.

I haven't given much thought to the case before today, but its a biggie. Which side are you on?

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    MGM v. Grokster: Which Side Are You On? | 23 comments (23 topical)
    Re: MGM v. Grokster: Which Side Are You On? (none / 0) (#1)
    by Talkleft Visitor on Mon Mar 28, 2005 at 05:10:34 PM EST
    One thing that gets lost in the debate, especially when the question is framed as "artists should get paid for their work," is that the purpose of patents/copyrights/trademarks is not to make sure that artists get paid, but is instead to promote the progress of science and the useful arts. [A(I,8,8)] Protecting the artists interests by requiring that they are paid, e.g. every time a song is bought, is only a means to an end. If the current copyright scheme, when faced with changes in technology, doesn't meet the end of promoting the progress of the arts, then we have a constitutional problem. But if the copyright scheme is simply failing to maximize the profit for the music industry, there is no constitutional problem. I don't see a constitutional problem here at all.

    Re: MGM v. Grokster: Which Side Are You On? (none / 0) (#2)
    by Talkleft Visitor on Mon Mar 28, 2005 at 05:13:36 PM EST
    I am all for the artists being paid, which is why I am on the side of the Peer to Peer networks like Grokster, in this particular case. You see, many independent artists use P2P networks to share their work and to create buzz which leads to sales. The important thing is why the big music labels are fighting these networks so much. Yes, they have probably lost some sales when people choose to download from these networks. On the other hand, they have lost many more sales by limiting their businesses. You see, a few years ago the big labels found a way to maximize profits. They packaged groups and individuals who conformed to the current formula for what's hot and consequently saved lots of money; they no longer needed to expend efforts in finding and developing new talents or experimenting with new types of music. Artists who sign with a label sometimes never see a dime from music sales. The typical big label contract may have high dollar figures for the artists, but they then subtract the cost of marketing and producing the records. Meanwhile, independent artists are selling more and more music than ever before, mainly because of the buzz surrounding P2P distribution. Finally, I wish I could find the chart, but I remember seeing interesting figures about the time that the original Napster went down. Basically, it showed that the decline in record sales closely matched the decline in new records that the labels released. It just might have been that the fewer new releases caused the decline in sales, not the increase in P2P networks. It would be quite beneficial for the big labels if P2P networks were to go away. It would be a shame for indepentdent artists and for music lovers, however.

    Re: MGM v. Grokster: Which Side Are You On? (none / 0) (#3)
    by Talkleft Visitor on Mon Mar 28, 2005 at 05:24:10 PM EST
    if the chinese have anything to do with this the artists can forget the money.

    Re: MGM v. Grokster: Which Side Are You On? (none / 0) (#4)
    by Talkleft Visitor on Mon Mar 28, 2005 at 05:46:39 PM EST
    This is a case near and dear to my heart and pocketbook. I tihnk both sides are wrong in their extremes and partially right in their middles. The biggest problem with the industry argument is that they are only protecting their self interest, not the musicians. They fell way behind the tech curve and are just trying to featherbed their industry. Their product isn't selling because of 'piracy', they just make a bad product. Like every part of the MSM only a few corporations own all the outlets and accountants, not artists, run them. They cook the books with 'signing bonuses' (AKA advances on future earnings) vs album sales and tours and can charge whatever they want in (in house) studio time & producers that your contract requires you to use. And getting airplay for your record is even worse. Payola has been legitimized by 'programming services' who get paid by major lables to hawk their product. (Does anyone really think Spears, JLo, and other packaged acts are the best out there?) Out of the $15+ they charge for a CD the artist generally gets about a buck. If they can get a concession percentage (i.e. t shirt sales) on tour they'll make more money from those sales than from the tour or a gold album (I know 'cause I got one o' them;-). This legal argument should have been settled with VCRs and cassette tape, instead congress allowed an industry to issue their own subpoenas and go after people who can't afford to defend themselves. There is no distinction between folks who have, say, bought the album or cassette, and it's rights, wore them out and D/L'd an MP3 copy or some thief who pirated a copy of the latest release and undercut the labels. Good time for another point. MP3s are not 'CD quality', they are about the same as a cassette copy of a vinyl or CD album. The real solution IMHO, should have been to forget the 'bricks & mortar' store concept, only do 'pressing' JIT, and allow people to DL the cuts they want for a reasonable price at home or bring in your own media to record what you want at a record store. It is somewhat akin to the situation in the 60s and early 70s, airplay didn't include Hendrix or Joplin or the Doors (unless you lived in a major, major market (i.e. LA NY SF) but their albums sold very well thru word of mouth in the counter culture. The record companies were very happy to rake in the profits for acts they didn't push, and now they are whining because people get their music elsewhere. Artists should get paid for their art, but as John Prine and Frank Zappa showed you can market your product to your fans on your own for much cheaper and get all the money after material costs are subtracted. This beats the hell out of being in debt to a record company after you sell a million copies. Except for the major labels, almost all artists can do better these days because they can record a better product in a home studio with better tech than has ever existed in history (WARNING: it's not the tool, it's the mechanic that counts), advertise on the internet, burn the CDs, print the labels and sell them at their gigs and online. OTOH, an exact digital copy of a digital work (movie, album, book, research etc.) is the same as the original. By file sharing you are not sharing that with a friend, you are mass distributing a copyrighted material for free and stealing from the creator. We don't really need the publishing house or the record label anymore, but we do need the originators to be able to profit from their creations.

    Re: MGM v. Grokster: Which Side Are You On? (none / 0) (#5)
    by Talkleft Visitor on Mon Mar 28, 2005 at 05:52:06 PM EST
    I'm was bit slower than alex or wiggen, but I don't see any conflict with my post and theirs.

    Re: MGM v. Grokster: Which Side Are You On? (none / 0) (#6)
    by pigwiggle on Mon Mar 28, 2005 at 05:53:28 PM EST
    TalkLeft- “I'm not that worried about the chilling effect on technological advancement.” Well, consider this then. My colleagues and I use P2P to transfer files that are otherwise cumbersome. For example I recently I downloaded a new operating system comprising several hundred gigabytes from a torrent peer network. If you are not worried about simple technology for technologies sake you should consider the negative impact on scientific collaboration(I’m doing fundamental research on fuel cells, something you may consider important) . These are legitimate products with legitimate uses. But hey, even if there were only a handful of folks legally using P2P that is enough for me; think it repugnant to effectively punish some folks for the wrongdoing of others.

    Re: MGM v. Grokster: Which Side Are You On? (none / 0) (#7)
    by Talkleft Visitor on Mon Mar 28, 2005 at 06:07:45 PM EST
    Oh, and BTW, I can use my car to kill people, it doesn't mean that cars should be outlawed. I use bitTorrent and other P2P networks to share tracks on album projects when soloists are on tour or not physically available. In the 'old days' we had to order a special balanced telco line or pay big bucks for a sat uplink to share tracks between studios. Don't blame the technology.

    Re: MGM v. Grokster: Which Side Are You On? (none / 0) (#8)
    by Talkleft Visitor on Mon Mar 28, 2005 at 06:22:18 PM EST
    Hey Rocker - Have you seen "Be Cool" and is that fairly accurate or mostly BS? et al - I surely do not understand the legal issues, but the fact is that too many people issued too many albums with one or two songs worth keeping, with the rest dogs. When the economy cools, disposable income is looked at much closer. The answer is simple. Sell downloads of what people want to hear, instead of expensive albums of what they don't really want. I have to believe the increased volume will, in the long run, benefit the artist, who, after all should make the money. And if extensive advertising is required to sell "the artist," then something is wrong.

    Re: MGM v. Grokster: Which Side Are You On? (none / 0) (#9)
    by Talkleft Visitor on Mon Mar 28, 2005 at 06:38:30 PM EST
    You can't go wrong arguing on the side of enabling technologies that have legitimate moral uses. A crowbar isn't illegal. Given the way things are going, innovation might be the only hope america has to grow out of her debt. We need massive pro-technology reform, patent reform, copyright reform, all to return the balance to be advantageous to the little guy and the innovator. Continuing to pander to the big corporations that apply patents and copyright law in predatory fashions will only further mute our ability to innovate.

    Re: MGM v. Grokster: Which Side Are You On? (none / 0) (#10)
    by Talkleft Visitor on Mon Mar 28, 2005 at 07:00:50 PM EST
    PPJ, haven't seen it. Almost Famous and Spinal Tap were about as close as I've seen;-) iTunes from Apple has done the best biz model so far, and the AAC codec is about the best compromise between qualty and file size I've seen, but it brings up the fundamental question; It's been hacked. Should the hackers be able to post their code? What if they live in a different country? What about free speech? This is a very thorny, technical problem, but as usual congress hasn't dealt with it very well so far. They've been swayed (and I'm shocked, SHOCKED I tell you), by the big money donors, and really don't seem understand the technology. Now we have huge multinational corporations going after kids and grandmothers who may or may not be guilty, but they can't afford to fight back. That offends my sense of fairness as much as being ripped off for my labors does.

    Re: MGM v. Grokster: Which Side Are You On? (none / 0) (#11)
    by Talkleft Visitor on Mon Mar 28, 2005 at 07:13:24 PM EST
    I'm all for artists being paid, and that's why I'm on the side of Grokster and Streamcast. What the RIAA and MPAA choose to ignore are the numerous economic studies showing a positive correlation in the diffusion of works over P2P networks, be they non-infringing or infringing, and the sales of said works. The latest of these studies was recently posted on Copyfight only a few days ago, where a Japanese economist came to the same conclusions I stated earlier. As Mark Cuban (now funding Grokster's defense might I add) described it, piracy has become the ultimate big content industry boogeyman to explain every "problem" that has befallen it in the past few years. The most disturbing element about this case is that it essentially destroys the Betamax shield which protects technology manufacturers from being charged with inducing infringement if the technology can be used in a non-infringing way. Back in the days of Napster, P2P networks were still mostly centralized. A central server would require registration, a login and a password, as well as orchestrating the file transfer itself. The second Napster case ruled that Napster was in fact liable because it had the capacity to block infringement but did not. The next generation of P2P networks, such as the defendants Grokster and Streamcast, were entirely decentralized, instead relying on constantly changing supernodes to orchestrate the transfers and eliminating registration and logins altogether. MGM’s charge is that is the responsibility of the technology developers to implement systems which guarantee that there will be no non-infringing uses, because they believe such a system is actually implementable, and that the failure to do so is the equivalency of willfully enabling copyright infringement. The number of technologies that we use that are protected by this ruling have become utterly ubiquitous in our society. The Electronic Frontier Foundation has a countdown to the 29th with only a few of the technologies that would be illegal if the SCOTUS were to rule in favor of MGM. This is a case that threatens the vast majority of content owners who are not represented by the petitioners in their ability to distribute their content and threatens the innovation of important new technologies for the purposes of protecting the antiquated business models of a few individual corporations.

    Re: MGM v. Grokster: Which Side Are You On? (none / 0) (#12)
    by Pete Guither on Mon Mar 28, 2005 at 08:22:54 PM EST
    I'm in agreement with Rocker. Lots of excellent points. The Industry is trying to make up for its business failures by getting the government to protect its antiquated business model. Practically every industry has to adapt to technology. Printing companies no longer hire typesetters -- the ones who succeeded got into assisting with desktop publishing. Photo places that haven't switched to digital are going out of business.

    Re: MGM v. Grokster: Which Side Are You On? (none / 0) (#13)
    by Talkleft Visitor on Mon Mar 28, 2005 at 08:55:33 PM EST
    One point getting lost in the shuffle: is it necessarily a good thing that the artists get paid? Most music that makes money is total crap. And seriously, music isn't going to stop being made if 50 Cent or Britney won't profit off their platinum albums. So, contra the other favors, I'm most certainly against the artists getting paid. It'll separate out the wheat from the chaff. Or at least it'll disincentivize the kind of junk that tends to make money.

    Re: MGM v. Grokster: Which Side Are You On? (none / 0) (#14)
    by Talkleft Visitor on Mon Mar 28, 2005 at 08:58:08 PM EST
    We're sitting in line at the Supreme Court now trying to get in tomorrow morning. There's free wifi, courtesy of Public Knowledge. My husband and I are second and third in line, so it looks like we should get in tomorrow. I'm torn on this because I work at the Internet Archive, and yet my whole family works in the movie industry. I do believe that the technologies should NOT be outlawed. Artists should get paid for their work, but having content providers dictate the technologies is a bad idea. It's already starting with Tivo unfortunately. The copyright laws need to be updated to reflect the current technology capabilities.

    Re: MGM v. Grokster: Which Side Are You On? (none / 0) (#15)
    by Dadler on Mon Mar 28, 2005 at 09:55:07 PM EST
    what this is really about is the fundamental lack of respect for the "artist" -- by big corporations AND the general public. While record companies, for example, are notorious for screwing artists at every financial turn, no SCOTUS would ever rule it legal that, say, microsoft office could be legally and freely traded, or any other "real" business product whose producer does not intend to give it away for free. and i sympathize with working people living paycheck to paycheck looking to get a few free tunes to relax with, but if you can afford to support the artist in a reasonable manner...then do it, you cheap bastards!! now, should Grokster be held liable? all i can say is they know full well what their users are doing. and why. much more than a gun manufacturer could possibly know some person x would purchase one of their guns to use it to kill someone. if technology is on such an unstoppable roll, then roll some of that momentum toward a system that better insures fair and reasonable compensation to the artist for taking a song, album, book, movie, whatever it is. because that's what they're doing. taking it, no differently than if someone went to a bookstore and took a book. and just because the product in this case exists in digital code on hard drives or cd's or dvd's doesn't make it any LESS a product, nor the artist behind it any less deserving of compensation we never think of denying a "business" person.

    Re: MGM v. Grokster: Which Side Are You On? (none / 0) (#16)
    by Talkleft Visitor on Mon Mar 28, 2005 at 10:23:04 PM EST
    if technology is on such an unstoppable roll, then roll some of that momentum toward a system that better insures fair and reasonable compensation to the artist for taking a song, album, book, movie, whatever it is. Yes. Technological problems need technological solutions. There are means to protect data, but the people who make the decisions aren't generally capable of understanding it, so it doesn't get used. On the other hand, I've never believed the arguments that legal rulings such as this might be would hinder the development of technology. An interesting website for a starting point in data protection might be Cryptography Research.

    Re: MGM v. Grokster: Which Side Are You On? (none / 0) (#17)
    by Talkleft Visitor on Mon Mar 28, 2005 at 11:35:52 PM EST
    I'm firmly on the side of P2P and Open Source. I won't add to what has been said, but as to the artist getting paid, you might want to check this link at Boing Boing. It's from an interview with David Byrne and his thoughts on file sharing.

    Re: MGM v. Grokster: Which Side Are You On? (none / 0) (#18)
    by Talkleft Visitor on Tue Mar 29, 2005 at 07:16:34 AM EST
    To save anyone the trouble of looking it up, here's how the justices broke down in Sony v. Universal. I'll put the justices still sitting in bold. Joining in the opinion (i.e. siding with Sony and the VCR): Stevens, Burger, Brennan, White, O'Connor Dissenting: Blackmun, Marshall, Powell, Rehnquist I'm guessing Rehnquist and Marshall didn't join in decisions often.

    Re: MGM v. Grokster: Which Side Are You On? (none / 0) (#19)
    by Dadler on Tue Mar 29, 2005 at 10:30:07 AM EST
    it's quite easy for someone like david byrne to not worry about this, he's a securely wealthy guy and his actual livliehood doesn't depend on it anymore. if you're an artist, not rich, and just trying to make your living, then rampant "file-taking" is just taking rent money out of your pocket. the notion we can't have BOTH file sharing and reasonable intellectual rights is simply b.s..

    Re: MGM v. Grokster: Which Side Are You On? (none / 0) (#20)
    by Talkleft Visitor on Tue Mar 29, 2005 at 03:18:56 PM EST
    After listening to the podcast, I side with those who try to protect copyrights legally while still providing legal access for file-sharing to registered users of the peer-to-peer networks who are willing to pay, e.g., subscribers' fees, for use of that kind of service. (I see little difference between that kind of service and something like Netflix or the new service added by Blockbuster, which charge subscription fees for rentals of DVDs, e.g.) If, as an earlier commenter suggested, mp-3 and avi or other video files aren't as high quality as CDs and DVDs, the need to compete in such rental markets might actually improve the quality of the files (and "podcasts" too!). Or maybe some kind of "Creative Commons" license (as opposed to the current FBI seal) can be devised so that those who do want their intellectual and artistic properties distributed for "free" sharing can do so willingly on peer-to-peer networks of lesser than perfect audio-visual quality. (The market--supply and demand--would determine the future success of such possibilities. It has already been clearly established that peer-to-peer file-sharing services already have measures through which industries creating the intellectual and artistic properties can collect portions of fees to use to compensate those owning copyrights (artists, musicians, filmmakers, other creators) and contracts benefitting from those copyrights (agents, production companies, etc.) The podcast makes it clear that Grokster does not currently require registration of users or other means of preventing copyright infringement. It may still be held liable for that kind of disregard of copyright-protection security measures. I think that a resolution will come in the direction of the kinds of subscription services devised for colleges and universities to provide their students with legal access to peer-to-peer file sharing services on the internet. Clearly, in the past the entertainment industry has benefitted from commercial distribution of its products via VHS videotapes, CDs, and, more recently, DVDs (and soon HD-DVDs) to be played on VCRs, CD and MP-3 players, and DVD players and recorders, such as TIVO. Some kind of compromise will probably come from the resolution of this court case that is parallel to a combination of the SONY Betamax and the Napster cases. Live blogging of today's oral arguments has occurred at EFF here. EFF seems very optimistic so far that the defendants will prevail. I think some compromise adaptive measures will still have to be worked out through lower courts to protect copyrighted intellectual and artistic (trademarked) properties (the plaintiffs (the film and music industries and the artists, musicians, and other creators whom they represent through their associations) and still enable technological advancements to occur without further violations caused by uncontrolled, illegal infringements of copyrights by those who do not respect them.

    Re: MGM v. Grokster: Which Side Are You On? (none / 0) (#21)
    by Talkleft Visitor on Tue Mar 29, 2005 at 03:23:37 PM EST
    Nina Totenberg of All Things Considered at npr.org is currently reporting on this case right now. I'm going over to that site to see what is posted on it later. (Transcripts of ATC posted usually within 24 hrs.)

    Re: MGM v. Grokster: Which Side Are You On? (none / 0) (#22)
    by Talkleft Visitor on Tue Mar 29, 2005 at 04:07:15 PM EST
    The case isn't about stealing, it is about corporations controlling content and delivery. If I manufacture cassette tapes or or any other blank media, or even the recording device, am I liable when someone else uses that to record copyrighted material? The industry argued that before and lost. Somehow those industries survived radio, TV, VCRs, cassette recorders and CD burners. For awhile they tried to argue that used CDs should be regulated and be forced to charge a copyrights premium even tho the rights for that CD had already been paid once. I basically don't trust the RIAA or MPAA (industry lobbying groups) to want to do anything except support the suits. The $$ still won't go to the artists.

    Re: MGM v. Grokster: Which Side Are You On? (none / 0) (#23)
    by Talkleft Visitor on Thu Apr 07, 2005 at 11:23:11 PM EST
    Technological advancement has opened up an inevitable can of worms. We've reached, and exceeded the brink. There's no turning back now. Everything is up for grabs, wide open. I'm in the music business, and people I know in the industry trade music, software and everything else illegally themselves. No one's immune. Such hypocracy! This stuff is too good to be true. A studio??... in my laptop?? For free?? Gimmie!! (and in 5 more years)... Final Cut Pro ... in my cell phone??... Yes! I want it! Who is going to seriously pass stuff up like this? Sure, the quality is terrible to trained ears, or eyes, with Mp3's, DIVX, home recording and video gear, but who cares right now? Not the manufacturers. Consumers want power and are willing to pay a few hundred bucks for it. Flood gates have been opened to gigantic markets. And yeah, eventually technology will make the quality thing almost a non issue, closing the industry advantage even more. We already have digital mics. There will always be money in hardware.

    MGM v. Grokster: Which Side Are You On? | 23 comments (23 topical)