Fair Use, Grokster and Piracy, oh my!
In the tradition of Mary T. at Mom Writes, who attends wonderful author lectures in the Bay area and blogs about them (the only possible way on God’s green earth I get to hear about them), I thought I’d.... (follow the jump) share some of the more interesting and pertinent things here.
(Also, I’m going to give you the bottom lines. I'm this stay at home mom now. Who has time for all the actual legal blow by blows?)
“Piracy, Grokster and Encryption: The Industry Strikes Back”
Now that the Supreme Court has decided the Grokster case, where are we now? Um, the Grokster case, you ask? That’s the one where the media moguls –the Recording Industry Association of America and the Motion Picture Industry - sued Grokster for the actions of their users, saying they are liable if their users use Grokster to share copyrighted movies and videos with each other. The Supreme Court ruled – well, they didn’t quite get to whether or not Grokster IS liable, they decided an initial question – that Grokster CAN be sued for copyright infringement by their users.
And so now? Our fellow blogger and Panel member, Denise Howell at Bag and Baggage (also an intellectual property attorney at a big LA firm) had the bottom line: what we can do is still going to be decided on a case by case basis - what is “fair use” is still not completely defined.
(In other words, once you've purchased, say, a song by Cold Play, what can you do with it? Change formats - yes. From CD to computer to ipod. You can time shift and space shift. That much is settled. As technology allows you to do more, what will be allowed? It all depends on what courts consider to be "fair use" of the thing you bought.)
(And I think: it may need to be that way for awhile. Who knows what technology will allow us to do in the future. And it seems there is some fine hairsplitting going on – you can Tivo a show for later, but you can’t loan it to your friends. But they can come to your house to watch it….And no one ever thought of Tivo seven or so years ago…)
And an additional worry she brings up – potentially the case brings into question the possibility that any aggregator of content could be liable (ie Google, Yahoo); the rules are still that unclear.
The next two speakers debated about what makes consumers tick – why do people think they can download for free? (I guess in some ways it doesn’t matter, but in terms of dissuading people psychologically instead of legally, it is helpful to consider.)
Neil Netanel, a professor at UCLAW, contends it is difficult for users to make distinctions between how copies are made. He thinks the entertainment companies need to come up with new business models rather than keep their old ones going. (Yeah, bring on the dinosaur jokes, said the MPAA attorney.)
Robert Rotstein, an entertainment and copyright lawyer in LA, contends that when you separate the content from the packaging (downloading from the internet rather than from a CD), it seems less like stealing. Also, he says, people are used to free things in their home: TV, the internet.
(I disagree here. Most college students now never knew the free tv era - they always had cable; same with the internet - unless you’re at the library you’re paying for it. However, the INFO you get on the internet, mostly is free. (And also suspect, but that’s another issue…) I contend people are just used to manipulating data in their homes. And that people probably are essentially on the economic free-rider system – they figure one little bits-and-bytes download of their song is not really going to break the back of the music industry. They just don’t see themselves as one of a million people doing the same thing, and thereby affecting the music industry. It’s a problem of disassociation from the role of yourself as an individual in the mass movement.)
David Ginsburg, the Executive Director of the Entertainment…Program at UCLA, points out this is no small matter: DVDs will outsell theatrical sales four to one. (Or do they now? I needed Tivo to back that part up…) Anyway, the numbers are big. From some 40 billion dollars for DVDs and some 10 billion for theatrical sales.
Finally, on the legal front, Dean Garfield represented “The Dark Side”, as he was jokingly called there. He is the VP and Director of Legal Affairs for Anti-Piracy for the MPAA (Motion Picture Association of America) – the chief legal officer who overseers all the litigation in the various anti-piracy programs around the world.
And he had a couple great points. First, Grokster and Kazaa make millions of dollars. They are big business. Second, theft is a social ill. It’s not right for people to steal from people who chose to make their living creating things. Also, peer to peer networks are not new, and they’re not going away. And I drastically paraphrase here, but in short – there is a need to work with them, but without giving away the content. Also, he pointed out that after the Grokster case, courts in China, Australia, Hong Kong and other places ruled similarly, companies around the world went out of business, so the Grokster case had many consequences.
Finally, we heard from Russ Chesley, from a technology company in LA which provides encryption software to the entertainment business. (One of the ironies of all this – if the technology can’t be controlled, do any of these legal issues really matter? Well, I suppose so – what individual wants to be afraid of prosecution for downloading a 50 cent song?) (And ironically, at a law school reunion, I was far more familiar with what he had to say – private key, public key encruption, etc, - from my years in software than the lawyers. And, they haven’t come up with anything new in three years? Shameful! (and odd!))
Lastly, when opened to discussion at the end, the Google Books project came up. Google wants to digitize every book known to man and open them up for searching. You still have to access a hard copy of the book somewhere. But is this okay? Do they owe any money? Are they just providing a service? Should they get permission from the library that already purchased a copy or from the copyright owner? What if the copyright owner can’t be found? Lots of interesting questions.
And just one example of why we will still be considering each new technology on a case by case basis, for it’s own fair use.
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