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07/03/2005

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Palooka

"This software has few other uses so far other than to copy files from one computer to another, which often is a violation of copyright protection on the files copied. Although Grokster is not per se violating any copyright by producing this software, its software unquestionably facilitates these violations."

Tell me how any of your points here do not apply to the Betamax case as well. Maybe it's a matter of proportion--60% of Betamax/VHS use was infringement whereas 90% of Grokster. But the reasons you give for allowing a trial in Grokster applied to the Betamax case when it was decided, and they apply to any number of accepted technologies even more so today, some of which allow the user to circumvent commercials (TIVO, for example). I guess one could argue whether Grokster reaches the "substantial non-infringing uses" threshold, but I think there is no question that it has the potential. Moreover, is it a matter of proportion or just an absolute number? If it's the latter, then I would argue that Grokster already has "substantial non-infringing uses" and users.

The Court focused on the actions and intent of Grokster in determining if they could be held liable, and not so much on the nature of the technology. That approach is attractive, but considering its likely effect--a chilling effect among small companies and especially individuals in providing any software or technology, especially freeware. Whether or not a line is crossed will become a moot point when the RIAA and MPAA begin to use this decision to silence and quash technlogies they view as dangerous. The high cost of litigation among innocent parties, and the likely chilling effect on innovation it will cause is a very good reason to reject the Court's determination of liability in Grokster.

Jack Terry

While I would prefer that, ultimately, grokster and other file-sharing software may be produced and distributed without liability, I don't see why the issue shouldn't go to trial. Obviously, as pointed out by both Posner and Becker, there are ambiguities and subjective decisions to be made, and those are most appropriately considered after a full trial (as opposed to the cursory examination when considering summary judgement). Grokster has a very good argument that their lawful use is a "substantial non-infringing use," and they will now have an opportunity to present it.

Also, it is only after the trial (when a determination of liability is made) that we will see if there is any chilling effect on software innovation among small businesses and individuals.

Jim S

One poster says that perhaps 90% of the usage of Grokster was infringing. Huh? Try 99.99%. I can't think of anyone I know who even knows anyone who has used it or the overwhelming majority of file sharing software for legitimate purposes and computers are my profession as well as hobby.

OTOH, the rumblings being made by the industry about going after BitTorrent should be slapped down hard and fast because there is substantial legitimate use of BitTorrent in the open source software community. I think they would lose that lawsuit rather badly with some large software companies more than willing to file amicus briefs in favor of the BitTorrent developers.

Palooka

That 90% estimate is from a statistician employed by MGM.

From the Grokster opinion:

"Although Grokster and StreamCast do not therefore know when particular files are copied, a few searches using their software would show what is available on the networks the software reaches. MGM commissioned a
statistician to conduct a systematic search, and his study showed that nearly 90% of the files available for download on the FastTrack system were copyrighted works. Grokster and StreamCast dispute this figure, raising methodological problems and arguing that free copying even of copyrighted works may be authorized by the rightholders. They also argue that potential noninfringing uses of their software are significant in kind, even if infrequent in practice. Some musical performers, for example, have gained new audiences by distributing their copyrighted works for free across peer-to-peer networks, and some distributors of unprotected content have used peer-to-peer networks to disseminate files, Shakespeare being an example. Indeed, StreamCast has given Morpheus users the opportunity to download the briefs in this very case, though their popularity has not been quantified."

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