Wednesday, October 24, 2007

Streamcast will be ordered to 'use most effective means available to reduce infringing capabilities of Morpheus', in MGM v. Grokester

In MGM v. Grokster, the Court has decided, in an 83-page decision, that an injunction should be issued against Streamcast (owner of Morpheus), and that a permanent "Special Master" should be appointed to supervise compliance with the injunction.

The injunction, once it is issued, will require Streamcast "to use the most effective means available to reduce the infringing capabilities of the Morpheus System and Software, while preserving its noninfringing uses as feasible".

October 16, 2007, Granting in Part Plaintiffs' Motion for Permanent Injunction*

* Document published online at Internet Law & Regulation

Keywords: digital copyright online law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs





9 comments:

Russell said...

I don't see this being a happy ending.

Big media will not accept anything less than 100% filtering, regardless of the false positive rate.

If the false positive rate is too high, the legitimate users will be forced to move to another p2p network.

But with this precedent (a assume it is a precedent), Big Media will be forcing all p2p networks to meet this level of 'protection'

I predict a Pyrrhic victory

Ray Beckerman said...

Sounds to me like it will be a reasonably balanced injunction, rather than the draconian thing the content cartel was looking for.

I don't know enough about Morpheus to say, but it sounds to me like it will be able stay in business and prosper.

ryan said...

Something to remember. Morpheus got slapped down because they were actively encouraging piracy. There is a big gap (well to me and hopefully to the Law) between promoting copying copy written material and the protocols / programs that have EULA's etc that make you declare that you are only transferring files that you are allowed to do so. IIRC the Supreme Court decision only refined the Betamax decision, it did not overturn it. Basically, you are protected from what your users do if your product has a significant non-infringing use and with the recent decision you need to make sure that your not out there promoting the infringing possible uses.

jambarama said...

The most effective means to reduce infringing capabilities is to block all files, shut down the network, and go home. That will completely stop the infringing capabilities, and I'll bet nothing short of that (or mythical perfect enforcement) will be good enough.

Ray Beckerman said...

Dear jambarama,

1. And you base that on what?

2. Who do you work for? The RIAA?

3. The RIAA no doubt made that argument. The judge clearly rejected it. He explained the reasoning of his decision over 83 pages. Which part of it do you disagree with it and on what basis?

jambarama said...

Thanks for the response, I didn't mean to sound dismissive or challenging.

As you point out I haven't read the case, nor do I know squat about this area of law compared to lawyers in this field - such as yourself.

In answer to your questions:
1 - I base my previous comment on the follwoing explanation
2 - I don't work for the RIAA or any party at interest
3 - The judge may have rejected the argument that shutting down is the only effective way to stop infringement outright, but there may be problems with enforcing this decision in an equitable manner.

I'm also not trying to make the point of what *should* happen - as in what is right/wrong morally, legally, otherwise - but what *could* happen with enforcement.

I think you are right, the order does sound quite balanced. The key word "reduce" (as opposed to "eliminate") is pretty fair. How it is carried out is where my concern is. It is possible likely the opinion deals with most of this, so I can't say with any degree of certainty enforcement of the following items will be problems, just that they could be.

From a technical point of view the most effective filter blocks everything if effective is defined by no false negatives. The RIAA doesn't care about false positives (and may want to encourage false positives), so it is likely this is how they see "effective".

Thus, I predict it is likely the RIAA will not be satisified with any filter when "a little more effort" may have stopped a bit more infringing. Any filter can be tweaked a little bit more, another exception can always be added - and there are great costs to doing this.

Theoretically you could hire people to vet all the files - that is probably more effective (from any standpoint) than a technology filter. If Grokster doesn't do this, are they failing to use "the most effective means available"?

What about the issue of the new filter technique of the week? Everytime someone makes progress in a filter related field (like spam filtering) that enables slightly better deteciton, does Streamcast have to immediately implement that technology or risk sanctions? What if the inventor of said technology charges more than Streamcast can reasonably afford to pay?

Which is why I'll bet Russell is right and I bet this decision won't heel the RIAA hounds from Streamcast.

Ray Beckerman said...

Dear jambarama

1. I use comment moderation, based on my comment policies. Which is why your post won't show up right away. So there was no need to post it 3 times.

2. I apologize for using comment moderation; I would really much rather not use it. But I have found it is the only way for me to avoid
(a) comment spam, (b) RIAA troll activity, (c) profanity, and (d) other things which might cause embarrassment to this blog. Since the RIAA lawyers are fond of citing my blog to the Court, I cannot let this become a free-for-all where anonymous trolls with lots of time on their hand make this forum useless for purposes of intelligent discussion of the important issues that are at stake.

3. The whole premise of your last post is wrong. It doesn't have to "satisfy" the RIAA. Nothing would "satisfy" the RIAA except destruction of competition. It just has to satisfy (a) the law, (b) the Judge, and (c) the Special Master who will be appointed.

Contrary to what they may think the Big 4 record companies are not the Masters of the Universe; they are just 4 dying, money-losing corporations, being driven to their grave by a group of lawyers who have convinced them that suing innocent people in most cases, and in the other cases suing ardent music lovers, is a sound business policy.

Russell said...

Ray,

You are right in that the decision is about as 'fair' as it could be.

I for one will be very interested in who is appointed as Special Master.

Ray Beckerman said...

I would expect the Court to find someone who is acceptable to both sides. E.g., a well respected copyright law professor.