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Opening Salvo Filed In MGM v. Grokster 90

Posted by timothy from the yes-it-says-filed dept.
Aire Libre writes "The first brief on the merits before the Supreme Court in MGM Studios v. Grokster was filed Friday (January 21, 2004) by the Video Software Dealers Association. The brief suggests that while p2p systems may be used for infringing and noninfringing uses, courts should consider whether technologies may be used to reduce infringing uses without over-burdening the system provider, freedom of speech for non-infringing uses (including by copyright owners who want p2p systems to be used to reach their audiences) or freedom of competition (including first sale doctrine principles, and competition in providing all intermediate software and services). Bringing a retailer perspective, it strikes a balance of respect for copyright and respect for the limits of those copyrights. The brief is available here (in PDF)."
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Opening Salvo Filed In MGM v. Grokster More

Opening Salvo Filed In MGM v. Grokster

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  • Considering this is a very balanced assessment, I'm not sure how it could be characterized as an "opening salvo," or if it could be, who is the salvo directed at?

  • Huh? (Score:2, Funny)

    by Black Parrot ( 19622 )


    What is this "respect for copyright" you speak of?

  • timothy, an FYI: (Score:3, Insightful)

    by Slash Watch ( 849331 ) on Saturday January 22, 2005 @04:58PM (#11443527) Journal
    A "salvo" is something that is fired. A "suit" is something that is filed.
    From Webster's Revised Unabridged Dictionary (1913) [web1913]:

    Salvo \Sal"vo\, n. [F. salve a discharge of heavy cannon, a
    volley, L. salve hail, imperat. of salvere to be well, akin
    to salvus well. See {Safe}.]
    1. (Mil.) A concentrated fire from pieces of artillery, as in
    endeavoring to make a break in a fortification; a volley.

    2. A salute paid by a simultaneous, or nearly simultaneous,
    firing of a number of cannon.

    From WordNet (r) 2.0 [wn]:

    salvo
    n 1: an outburst resembling the discharge of firearms or the
    release of bombs
    2: rapid simultaneous discharge of firearms; "our fusillade
    from the left flank caught them by surprise" [syn: {fusillade},
    {volley}, {burst}]
    3: a sudden outburst of cheers; "there was a salvo of approval"
    [also: {salvoes} (pl)]

  • I think a more important question is: (Score:3, Insightful)

    by imstanny ( 722685 ) on Saturday January 22, 2005 @05:03PM (#11443572)
    Can you take away rights of the innocent in order to prevent illegal actions? To me... outlawing p2p (which on its own is legal) to stop illegal file transfers is like outlawing driving cars in order to stop people from speeding.
    • Can you take away rights of the innocent in order to prevent illegal actions?

      You just redefine the new activity as illegal. Drunk driving is defined as illegal, but the vast majority of drunks don't actually injure others on the road. No one seems to disagree that their rights shouldn't be preserved, though.

      There are other precedents, too. Certain guns are illegal, despite the 2nd amendment. Why couldn't the courts rule certain software illegal? Software doesn't even have it's own amendment protecting

      • Certain guns are illegal notwithstanding the 2nd Amendment because the last time those laws came up before the Supreme Court, the pro-gun side died before showing that the Supreme Court's interpretation of the 2nd Amendment specifically allowed those guns (machineguns, sawed-off shotguns, etc.)

        Here, the case is coming to the Supreme Court. Although there is not a Constitutional provision for it, the Supreme Court tends to take things like future technological setbacks into account before handing down a
        • Neither a machinegun nor a short barreled shotgun is illegal in the US. They simply require special (expensive) permits to own.
          • The tax stamp (not permit, and not expensive) that you are thinking of is more than just expensive to get - it requires local law enforcement approval, a background check, and the $200 tax. However, no machinegun manufactured after the middle of 1986 can be owned by anyone but a class III FFL holder or law enforcement agencies.

            The second amendment uses the word "infringed" to describe what "shall not be" done to "the right to keep and bear arms." I ask you this - if you have a patent on something and s
    • How about outlawing guns to stop people from committing murder? Not only is in ineffective in its goal, but it takes rights away from the innocent. But the vast majority of Slashdotters are in favor of banning guns, despite their multitudinous lawful purposes. It's hypocritical.
      • Not in the EU it's not...

      • How about outlawing guns to stop people from committing murder? Not only is in ineffective in its goal, but it takes rights away from the innocent

        Try to look up murders/population for a gun-ban country and a non-ditto. You might learn something :)

        Then check on the accident rate of gun owners and their children. You might learn something.

        In fairness, most gun-ban countries do not ban gun as such. They require you to hold a license, which you have to apply for. I do not think it is very difficult to obtain

        • Look up the change in rates though and you might also learn something. England's violent crime rate has RISEN since banning firearms. On the flip side, most states that have enacted concealed carry laws have seen a decline in violent crime. England has historically had a lower violent crime rate that based on viewed data cannot be attributed to firearm ownership. Switzerland has higher firearm ownership levels yet much lower violent crime levels. There are other factors at work here.

          • Unfortunately, I cannot dig up the change rate in murders for either country. Perhaps you have a source?

            Remember, the crime rates says nothing about the impact. Guns or no guns have little bearing on thieving, embezzling and common violence. In fact, I would expect an increase in violence since the violent people beat each other up instead of shooting them :)

            Also, it takes a lot of time before gun bans works for the positive side. In the beginning, there is still plenty loose guns in the hands of the shad

        • Do you own the apartment building? Yes? Then sure; knock yourself out. (But don't expect the insurance company to pay for the building when you vapourize it one evening.)

          Did you know that it is considered arson to burn down your own house that you fully own!?

    • "Can you take away rights of the innocent in order to prevent illegal actions? To me... outlawing p2p (which on its own is legal) to stop illegal file transfers is like outlawing driving cars in order to stop people from speeding."

      Continuing your analogy, the goal of various pieces of litigation and legislation as of late is to force P2P software vendors to act in a more responsible manner. I suppose you could compare this to legislation to require cars to pass minimum crash standards and to include sa

      • Continuing the car analogy a little further, isn't what the entertainment industry is trying to force the P2P companies to implement (filtering, content control, etc.) a bit like trying to force car manufacturers to put speed limiters on all cars? (Which hasn't happened to the best of my knowledge, with the exception of heavy goods vehicles)
        • Most cars nowadays are limited. Most drivers will not see this limit, but generally around 120 mi/h 200 km/h the car will disengage the engine until the car has slowed down some. Not surprisingly, some people remove the governors.

          Of course, there are very few roads which permit driving anywhere near that fast. I believe many states in the US require vehicles to be sold with the speed limitation.
          • I believe many states in the US require vehicles to be sold with the speed limitation.

            Wow, that I didn't know. Any idea if the same is true in other countries? (I've certainly not heard anything like that reported over here, and there are plenty of high performance cars sold here)

            • One document that came up easily [bts.gov] mentions speed-limiters, but it seems they are only required for heavy vehicles. Further research seems to confirm that all vehicles over 12 metric tons require speed limiters in the EU.

              This document [abd.org.uk] is quite dated (1995!), but it seems speed limiters were suggested for all automobiles in the UK, but it was eventually dropped. I was not able to find very much at all about limiters for regular vehicles, so I would say they are not required over there.

              This report [ltsa.govt.nz] from 20
            • Often the governers are in the car's computer.

              I was reading an article by someone - they took an old car, used a ROM programmer, and altered the car's program to remove the governer (along with some other tweaks).

              Im not sure of the legality of reprogramming your car's ROM, but do check with your dealer about upgrades. Just like BIOS get flashes, some cars do too. (for example one model had chronic transmission breakdown - a ROM update resolved the issue somehow)

          • Are you sure that they are speed limiters and not RPM limiters? Many motorcycles do in fact have rev limiters which kick in at or just beyond redline, but they work in every gear. In first you might be limited to 75 MPH, but in second, you could hit 90. And so on up through top gear (about 155MPH at 9k RPM on my bike).

            The purpose has nothing to do with limiting the speed at which your wheels turn (MPH), but everything to do with preventing you from fragging your motor. Most cars top out at 120 or so simpl

        • No, it's quite a bit different.

          It's fairly easy to say "No road in America has a speed limit of over 110mph, so we expect all cars to have 120mph speed limiters."

          It's fairly easy. IT doesn't infringe on any legal use of the vehicle. Presumably if you want to hit the racetrack, you can modify the car legally.

          With file transfer applications, it's far more compliated. To make an application taht can't break the law is like making a gun that can't break the law. How am I, the developer, supposed to have the
      • To continue the car analogy in a more appropriate way than the previous poster, the current batch of P2P wannabe-laws is more like requiring cars to not crash: implementation is left up to the vendor.

        How do you tell a computer to not transmit copyrighted information (without it already being tagged in some unremovable, unmodifiable DRM container, in which case it wouldn't matter anyway)? If I send you a file that's not named like a known song, doesn't hash to a known song, and doesn't have a "sound print"
      • act in a more responsible manner

        Responsible for what? And responsible to whom?

        Are VCR manufacturers responsible for anyone who uses a VCR to commit copyright infringment? Well according to the US Supreme Court they are not. And according to the general public any such attack on VCR's would be considered pretty much insane. And that was the exact basis of the ruling that P2P authors were not liable if someone else happens to make use that software while commiting infringment.

        There are certainly people wh
    • "Can you take away rights of the innocent in order to prevent illegal actions?"

      If you read the brief (which is a rather long read, especially by /. standards), that is one of the core issues discussed by the VSDA. They argue that in the Betamax case Sony won largely because there was no remedy that could reduce the probability and gravity of copyright infringement without creating an unduly large burdon on others. Although not specifically addressed in Betamax, VSDA noted these burdons included First Am

      • I pretty well agree with your comments on their theory. To put it bluntly they are arguing that VCRs manufacturers *are* guilty, that the Supreme Court didn't really hold them non-liable but merely ruled that what the MPAA's demands were excessive.

        If one accepts their argument, if the court accepts their agrument, it is a blank check for the MPAA to again attack VCRs through the courts! The MPAA merely needs to make less burdensome demands.

        I think there's an interesting tell-tail in their argument. They f

  • P2P use is mandatory (Score:4, Interesting)

    by Anonymous Coward on Saturday January 22, 2005 @05:12PM (#11443622)
    The internet (the whole danm thing) depends on technology called DNS, the Domain Name System. It allows people to type names of websites, rather than just IP addresses. DNS information about sites on the web are shared by way of a peer to peer network. A simple one, but that's how it's done. Killing off all p2p will effectively kill the internet. Tread carefully when you start trying to kill p2p. Also, since there are a lot of technologies that demand p2p (and there is no substitute), you had better not just go running around saying 'kill p2p, that will solve our problem', because it won't. Killing p2p won't solve the problem, but will harm technology requiring p2p.
    • While I agree for the most part with what you're saying, I don't think the dns system qualifies as p2p. At least not any more than the www does. DNS requests work by disecting the hostname in question piece by piece. For example, www.slashdot.org. I dns query for this by joe user would start by querying the dns server (which is just a cache mainly) of their isp. This dns server would in turn query one of the root name servers (or whoever owns .org) for the dns server that controls slashdot.org. The is

    • This is a case of MGM suing Grokster because they are (in the eyes of MGM) operating in an irresponsible manner that's causing financial harm to MGM. They're not suing the people who run DNS servers. Nobody should seriously worry about the Internet going away as a result of this action.

      • Re:P2P use is mandatory (Score:3, Insightful)

        by Alsee ( 515537 )
        That is a very shortsighted view and the direct cause of very bad and very broken law.

        You do NOT decide a case and create law based on whether you are sympathetic to the current defendant or not. You cannot willy-nilly imprison or sue anyone you dislike and randomly ruling to protect anyone you do like. We live by the rule of law, and if you make a BAD rule so you can "get at" someone you dislike then that rule *is* going to equally apply to those you do like, such as the Domain Name System.

        The law is tha

  • the real question is... (Score:1, Insightful)

    by Anonymous Coward
    Chief justice will atleast be serving until June, and this case decision is scheduled for July. How is that going to effect this case? Good/Bad?
    • Chief justice will atleast be serving until June, and this case decision is scheduled for July. How is that going to effect this case? Good/Bad?

      Rheinquist will participate only as a tie-breaker and probably only in cases where a final decision is urgent. I can't see him spending what limited time and resources may remain to him on something like Grokster.

  • DRM-Free Deposits (Score:5, Insightful)

    by Baricom ( 763970 ) on Saturday January 22, 2005 @05:19PM (#11443667)

    While MGM's position may be "balanced", there's always one thing that irks me about DRM: it makes it impossible to use in the public domain later.

    The very least a movie/music/software company must do to gain my approval is to deposit their materials to the Library of Congress unencumbered and DRM-free.

    Copyright is supposed to let creators make money on their work for a limited time in exchange for making it freely available later.

    Obligatory Disclaimer: IANAL

    • While MGM's position may be "balanced"

      It's obvious that you didn't RTFA, but how about at least reading TFS before commenting.

      The party considered to have a "balanced" position here is not MGM, it is the Video Software Dealers Association.

      I can guarantee you that MGM's brief will be considerably less tolerant of P2P.
      • "The party considered to have a "balanced" position here is not MGM, it is the Video Software Dealers Association."

        Yes. And they also discuss the issue of DRM and that any remedy in this case (such as DRM) should not expand the copyright holders rights to allow them to effectly stop consumers from using the works legally, including selling (transfer of title) or legal copying of the work, which presumably includes fair use, expired copyrights, etc.

        BTW, I'm not sure I'd got so far as to say the VSDA pos

    • Public domain doesn't exist anymore, so why does it matter?

    • Re:DRM-Free Deposits (Score:3, Insightful)

      by igrp ( 732252 )
      While MGM's position may be "balanced", there's always one thing that irks me about DRM: it makes it impossible to use in the public domain later.

      I agree. However, there's a way around this - see this /. article [slashdot.org] from a few days ago. Basically, the Germans have a copyright system that's roughly comparable to what we have in the US. But there's a way to exempt certain entities that are supposed to serve the public. That's why the German national library (which is comparable to the Library of Congress in tha

      • Basically, the Germans have a copyright system that's roughly comparable to what we have in the US. But there's a way to exempt certain entities that are supposed to serve the public. That's why the German national library (which is comparable to the Library of Congress in that it's sort of a national archive) can crack DRM'd audio, video or eBooks whenever the hell they feel like it.

        I don't see how requiring a library to employ a staff of cryptographers (and soon electrical engineers) to preserve a fracti

    • Do we really want Catwoman [imdb.com] and Sing The Hits of Ashlee Simpson [amazon.com] sitting anywhere near The Thomas Jefferson Papers [loc.gov] on the shelves of the Library of Congress?
  • with the relase of Exeem beta to day it makes me think what if your product's only perpose is to distrabute iligal contenet?
  • The author's summary is correct, but as far as I know, the lawsuit was filed precisely because Grokster refused to incorporate any anti-piracy measures into its network. Grokster will become the next Napster if it does so.

    • the lawsuit was filed precisely because Grokster refused to incorporate any anti-piracy measures into its network.

      How can a piece of software determine whether a contract exists between the owner of a copyright and the distributor of a work on a network and if so, whether the terms of said contract permit each instance of distribution? Could you describe how a practical anti-piracy measure might work?

      • I think that the recording industry's consensus is that the only sufficient anti-piracy measure would be a total shutdown or centralization of the system.
      • I believe that Grokster is centralized. If this is true, than perhaps technology such as SnoCap http://www.businessweek.com/technology/content/de c 2004/tc2004123_8817_tc119.htm could be used, at least for music files. DRM can work to reduce piracy on a centralized network at least, by requiring downloaders to obtain a license. Note, these things will certainly drive Grokster out of business like it did for Napster. It will also do little if anything to stem piracy as the file sharers can simply migrate

        • If this is true, than perhaps technology such as SnoCap could be used

          From the page you linked [businessweek.com]:

          When the user finds a file on another user's computer within that network, the newly downloaded software will check with Snocap's database to see if that file is registered. If it's not, it's up to the service to decide whether to send the file. But Snocap can notify the labels about which unauthorized files are being requested, so they can be registered.

          From the SNOCAP FAQ:

          SNOCAP provides a batch regi

          • what's to prevent a pirate from defrauding SNOCAP into thinking that he represents a label who owns copyright in a given work? Since the most frequently pirated songs are those of major labels, I think a phone call would do the trick. There are only so many hit (read: frequently pirated) songs. Remember, all I know is that Napster did something, and whatever they did, it reduced pirated content on their networks to such a degree that they went out of business. There is something out there that eliminate
    • I remember AudioGalaxy agreed and permitted the RIAA to flag certain artists/tracks so the files could not be downloaded.

      The RIAA discovered that it was not effective in the least. People would simply rename the files.

      Considering there is no way effective way (that I know of) to teach Grokster to identify content that should not be shared, I really don't see an alternative to creating a database of hashes or filename patterns, neither of which could stop the sharing.

      In other words, Grokster is likely re
      • Agreed. Napster did not reduce piracy when they used a name-based blacklist of files that couldn't be shared.

        I'm talking about whatever technology Napster implemented afterwards that eliminated pirated content. Some sophisticated audio analysis technology that I'm too lazy to dig up.

        But Grokster is refusing because they will go out of business if piracy is banned from their networks.
        • Some sophisticated audio analysis technology that I'm too lazy to dig up.

          I didn't realise Napster had that. If it could accurately filter out the blacklisted content and it was available to the Grokster developers, then I can understand requiring Grokster to implement it.

  • ...Unbiased, indeed. (Score:2, Insightful)

    by koko775 ( 617640 )

    "One of the most successful legal distribution systems for sharing copies of copyrighted works ever created is the $24 billion home video entertainment industry. Its success is not measured merely in profits for the motion picture industry's copyright owners, but more importantly in its creation of an affordable way of enabling the entire family to enjoy a movie and of offering the choice of literally thousands of creative works for an evening's entertainment."

    Doubtful. It's neither affordable, nor conven

    • To clarify, it is *very* successful, but P2P is *more* successful. Within a few years, the entire world adopted P2P, very quickly, and at low to no cost. It is my opinion that a better distribution system would further their causes if they'd only have the balls to try something new.

  • Opening salvo? (Score:3, Funny)

    by bersl2 ( 689221 ) on Saturday January 22, 2005 @06:20PM (#11444015) Journal
    "Enter letter number fire."
    Beep. Beep. Beep.
    [falling tone]
    [explosion]
    "Battleship hit!"

  • Balanced? Hardly. (Score:3, Insightful)

    by russotto ( 537200 ) on Saturday January 22, 2005 @06:37PM (#11444104) Journal
    There's a lot of verbiage in this brief, but what it comes down to is the VSDA is asking the court to overturn Betamax and rule for MGM, just in a way that doesn't hurt the VSDAs interests. That's a bad thing. There's no good that can come of this decision, only a lack of harm -- which is that Betamax is upheld and Grokster wins.

    The VSDA can probably see which way the wind's blowing and is trying to limit the damage to them.

  • Why the tech solution won't work (Score:3, Insightful)

    by Anonymous Coward on Saturday January 22, 2005 @07:18PM (#11444358)

    > should consider whether technologies may be used to reduce infringing uses without over-burdening the system provider

    This is an impossible goal. Here's why:

    Every automated solution for reducing copyright infringement over P2P has always had one thing in common: sniffing and filtering data at some level.

    Every data-sniffing solution has one of two basic architectural directions: centralized or distributed. If you pursue the centralized direction, you will rapidly encounter enormous scaling problems. If you pursue the distributed direction, you will rapidly encounter enormous management problems.

    These difficulties are tremendously compounded by the fact that neither the P2P developers, the ISPs, nor their customers have any natural incentive for doing any of this. The "incentive" can come only from the heavy fist of the law.

    The natural reluctance to deploy these unwanted, legally-mandated solutions will inevitably result in a "swiss cheese" environment. We know from past experience that massive numbers of people can learn very quickly where the holes are in the swiss chesse that allow them unfiltered access to the content they seek.

    And that's the best case scenario. A more realistic scenario will be something like a repeat of SDMI, which failed so miserably that the public wasn't even mildly inconvenienced by it.

  • Maybe the software dealers are actually looking to set some legal precedence such that they can protect what they see as a future desire to use P2P technology, like BitTorrent, to distribute and sell software.....
  • As an attorney, I'm extremely concerned about any solution to this problem that advocates telling technology developers that they have to implement technology measures in order to insulate themselves from secondary infringement liability, which is the big issue in Grokster.

    The issue isn't P2P itself. As many have said, the technology is perfectly legal and extremely useful. The issue is what bad actors are doing with P2P.

    Both the technology sector and the content industry have to realize that there is an

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