Today I set about to create a weblog (blog, as such things are called) based on material I have already written -- both on and offline -- and to integrate the 722 months of my life as I have lived it so far. My own dilemma, which I trust is shared by others, is to properly claim what is mine while acknowledging the claims of others. --Sheila Steele, March 23, 2003
Since peer-to-peer (P2P) exploded on the scene in the late 1990's, the entertainment industry has waged legal war against the distributive technology that sparked the greatest raid on copyrighted music in history.
Hollywood drove the first Napster out of business and flooded other P2P companies with expensive litigation. The industry threatened lawsuits against corporations that permitted employees to install the file-swapping software. Last year, the media moguls began suing individuals who download copyrighted material through P2P networks.
Thursday, though, the legal war took a calamitous turn for Hollywood.
Upholding a lower court decision issued in April of 2003, the U.S. 9th Circuit Court of Appeals ruled P2P technology is legal even if the software itself is used for illegal purposes.
"The technology has numerous other uses, significantly reducing the distribution costs of public domain and permissively shared art and speech, as well as reducing the centralized control of that distribution," Judge Sidney R. Thomas wrote in a unanimous opinion.
The three-judge panel acknowledged that copyright violations do occur on the decentralized P2P networks, but the companies owning and distributing the enabling software cannot be held liable for the infringements.
"We live in a quicksilver technological environment with courts ill-suited to fix the flow of Internet innovation," Thomas wrote. "The introduction of new technology is always disruptive to old markets, and particularly to those copyright owners whose works are sold through well-established distribution mechanisms."
As legal precedent, the court cited the landmark Sony Betamax case video recorder case of 20 years ago, in which Hollywood studios tried to make Sony responsible for the copyright infringements of Betamax owners who videotaped programming off their televisions. Ultimately, the U.S. Supreme Court said the use of new technology to infringe copyrights did not justify an outright ban on that technology.
A significant key to the decision was the court's distinction between Napster's original service and the P2P software now offered by Grokster and Morpheus, the principal defendants in the case.
In Napster's case, an index of material available for file-swapping was maintained on a central server. Neither Grokster nor Morpheus use central servers. In that situation, the court said, the two file-sharing software distributors have no control over the actions of their customers.
"The district court found that unlike Napster, Grokster and StreamCast [the owner of Morpheus] do not operate and design an 'integrated service which they monitor and control. We agree," Thomas wrote. "The nature of the relationship between Grokster and StreamCast and their users is significantly different [than] prior versions of Napster and its users, since Grokster and StreamCast are more truly decentralized, peer-to-peer file-sharing networks."
Both the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA) issued statements late Thursday saying they were reviewing the decision and considering a Supreme Court appeal.
"Irrespective of what any court says, a debate has crystallized: it's legitimate versus illegitimate," the RIAA's CEO Mitch Bainwol in a statement. "It's whether or not digital music will be enjoyed in a fashion that supports the creative process or one that robs it of its future. That's the online future of music."
The MPAA's Jack Valenti said the decision "should not be viewed as a green light for companies or individuals seeking to build businesses that prey on copyright holders' intellectual property. Businesses that ignore their responsibilities as corporate citizens profoundly undermine innovation in both the creative and technological arenas."
Not surprisingly, the P2P industry was excited about the decision.
Michael Weiss, head of Streamcast Networks, issued a statement saying, "As CEO, I am proud that Morpheus has become the first American P2P company to successfully win its fight for the right to continue to develop innovative new distributed communications technologies.
Adam Eisgrau, the executive director of P2P United, a trade group whose members include Grokster and Morpheus, called the decision a "complete and utter rejection of the entertainment industries' attempts to warp long-standing, pro-innovation copyright law into a weapon against peer-to-peer technology."
He hailed the P2P win as a "profound and major victory for the American consumer and our economy. Critically, the court cut through and rejected Hollywood's and Big Music's propaganda about peer-to-peer software and the P2P United member companies sued in this case to find the truth."
All you artists who are getting on the bandwagon about copyright and the idea that the government is going to protect you from bandits stealing your work: give your heads a shake! The only purposes that are served by creating tighter copyright laws are to create more soul-deadening, bureaucratic jobs and to encourage lawyers in their nefarious pursuits. It saddens me deeply to see so many artists spending time that could be otherwise dedicated to art on this issue. Artists are not really protected as Courtney Love demonstrates in her speech to the Digital Hollywood online entertainment conference, given in New York, May 16, 2000.
Shortly after our site went up in July, 1998, we got a flurry of local publicity when Sympatico pulled our site because of material we had posted about Sgt. Dueck and some crimes which had gone unpunished. We were excited because we felt the publicity might pressure the authorities to act on the issues we were bringing to public attention. Local CBC-TV did a suppertime clip and I videotaped it. Inexperienced as I was, I managed to turn the clip into a little animation which I posted on the site.
We were looking for innovative ways to bring Sergeant Dueck's crimes to public attention, to embarrass the police department and if necessary to humiliate them in the eyes of the world. What Dueck did was beneath contempt. As a Corporal, he had counselled disturbed children to make up lies about innocent people, and he managed to get one serious conviction. This wrongful conviction, together with other plea-bargains he had extracted from innocent people was sufficient to have him promoted to Sergeant. We thought this was dirty and corrupt and we thought most people would see it the same way that we did if they knew the full story.
The Crown had managed to baffle the StarPhoenix with a sweeping publication ban and the story seemed dead in the water. So we were excited that the StarPhoenix and the CBC were blowing some life back into it. We were even more excited when our little tracker showed us that CBC had revisited the site. We called them up, in case we had missed their call.
Here's one funny part. It wasn't reporters who were looking at the site. It was CBC lawyers checking to see if we had violated copyright law by using the images from the newsclip! We posted this information with the ironic comment that we could see the art police going after us for such an amateur effort, but that really, this was just the electronic equivalent of posting a newspaper clipping. We also pointed out that the B in CBC stands for Broadcast. They didn't find any of this funny. We have not received a single mention on CBC since that day. Last month Dueck was promoted to Acting Superintendent!
The next time copyright lawyers visited the site was after we created the McDueck's satire page January, 1999. I have despised McDonald's for a very long time and I have my good reasons which I'll probably spew forth in another rant some day when they are irritating me beyond containment. The "golden arches" have featured in the landscape of our lives as surely as mountains or prairie or ocean. I used this iconography to create a dark satire on a dark winters' day. There have been a large number of visitors to that page but a goodly per centage of them have been copyright lawyers. Possibly defamation lawyers as well. They have no doubt checked out our financial status and discovered that suing inJusticebusters would not be worth the effort. They have no doubt spent a few hours trying to have criminal charges laid since the trend these days is to go for criminal sanctions when civil efforts seem futile. Go for it, we say. We would not consider this the ideal vehicle for getting our causes before the courts, but it would do.
Which brings us to the RCMP selling the image to Disney. I laughed when first I heard that they had done this -- I thought someone was pulling my leg -- and I am no longer laughing. I am speechless. Wordless. Almost. The layers of irony inside this onion are too many to peel at once. The red-jacketed fellow with the cuddly dog bears no resemblance to the mounties I know (Corporal Wendell Suwinski comes to mind). But as far as the image goes? Every Canadian citizen has paid for a piece of it!
They have regularly stood back when given evidence that other police forces were breaking the law. Recently, a mountie, Russ Bevan, in Kipling Saskatchewan befriended Dr. John Schneeberger and helped him falsify blood sample evidence about allegations the doctor had raped a patient.
The Mounties steadfastly stood aside when we took our concerns about Superintendent Dueck to them. In February, 2000 the Mounties were called on to investigate the actions of two Saskatoon Police officers, Munson and Hatchen who admitted driving Darrel Night to the edge of the city fully knowing he might freeze to death. The Native community has been calling for an independent investigation and has hired their own private eyes because no one trusts one police force's investigation of another.--June, 1999 to February, 2000