LuminousVoid

Last semester, I blogged about a complaint I helped to research and write for Center for Democracy and Technology. The complaint was against deceptive download websites. These guys would advertise that they offered “100% legal downloads” while just giving out freely available copies of Kazaa and other filesharing software. This deceived consumers into thinking their $24.95 went to buy a license to download music using Kazaa.

And today, the Federal Trade Commission, having acted on our complaint, got an injunction against one of the operators. This bans them from using their deceptive practices. They’re seeking to have the website pay back money to consumers and notify consumers that they were deceived.

Awesome.

SCOTUSblog has the details.

Looks like the court was concerned about stiffling innovation, and dismissive of the “look at their business model” argument of the content industry — telling them to go make an active inducement claim on that.

Also it looks like some form of Sony will survive. There was one amicus brief that wanted it overturned. Though its unclear what form it will take. An affirmative defense? A separate avenue of liability?

Justice Ruth Bader Ginsburg gave voice to a concern that seemed to be troubling a number of her colleagues, too — the proper legal standard for judging secondary infringement in the digital age. She and others several times asked the attorneys to spell out their interpretation of the Sony Betamax standard, and to articulate why they thought it might not be adequate. (The Sony standard has usually been understood as barring secondary copyright infringement if the developer has created a product that has the capacity for “substantial non-infringing uses” that were “commercially significant”.)

Ginsburg herself said the Sony decision itself was not so clear on the standard it was laying down, because of extensive discussion in that opinion beyond the formula on non-infringing uses.

I’m off to grokster arguments. Hopefully I’m not too late!

UPDATE: Oops. I was too late. I got there and there were roughly 40-50 people in line. Expectations were that 50 would get in — maybe less, I’ve heard rumors of lots of VIP’s. So there was a high risk of a cold overnite for naught.

There was a group of 3 in front of me, I put down my chair at the end and went down to look for some folks I knew in line: they were way closer. When I came back, that group of 3 was more like 15. “Oh we were parking.” Not cool.

But, it did take the uncertainty out of it. And in that way I am thankful. The risk of waiting and then not getting in was way high — now its clearer. Oh well. Karma tells me they’ll be fighting each other for the last spots.

The Center for Democracy and Technology is filing today a complaint with the Federal Trade Commission against deceptive “100% legal” download sites. These sites claim to offer, in various ways, “100% safe” and “100% legal” music downloads for a fee of about 20-40 dollars. After signing up, they point you to freely available peer to peer software, like Kazaa or LimeWire, and give you some instructions in how to use it.

This deceives people into thinking that what they get on Kazaa is legal. In fact, what is legal is the distribution of Kazaa and the use of Kazaa to share what you have permission to share. This exposes people to lawsuits from the RIAA and MPAA and also stifles the creation of a legitimate market for music downloads.

Regardless of what one’s attitutes are about Kazaa/Grokster and filesharing software with substantial non-infringing uses, these websites are making money off of deceiving people who are trying to be in compliance with the law.

One website has already replied to a letter from the CDT.

CDT’s press release.
AP Coverage.

This term the Supreme Court will hear arguements in Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.

Procedurally, this is an appeal from a 9th Circuit opinion upholding a CA district court’s grant of summary judgment for the defendants, Grokster and Kazaa.

The question in the Cert Petition is whether the 9th circuit misapplied the principles of secondary liability when it found that Grokster and the other defendants weren’t liable for the infringement of their users.

Specifically, the question is of the Ninth Circuit’s application of the Sony Doctrine. The Sony doctrine comes from a case in which the content industry sued Sony for their Betamax video recorder. The Supreme Court ruled that Sony was not secondarily liable for the infringement of VCR owners, and any such technology could not be liable if it was “capable of substantial non-infringing use.”

For the Ninth Circuit, being capable of substantial non-infringing use doesn’t completely save you. If you still have knowledge of specific infringement — such as Napster did when someone searched their servers — and you fail to act on that information, you are therefore liable for that infringement.

Thus the Grokster/Kazaa technology becomes important. Napster kept central servers of all the files shared, Grokster/Kazaa don’t know what is being shared in their network, because searching for files is decentralized among the participants.