Unlike Moses in the accompanying cartoon, I don’t believe that the entertainment industry has a God-given stranglehold-right on use of digital property.
The Times reported in File-Sharing Sites Found Not Liable for Infringement that Grokster had won a major victory in the U.S. Ninth Circuit in its fight against MGM regarding file-sharing. MGM contended that Grokster itself was responsible for its users ‘illegal’ downloading of entertainment media. But the Court held that Grokster’s software allowed for no distinction between which software downloaded might be legal and which might be illegal. Without the technical ability to make such a distinction, Grokster was not legally responsible for the behavior of its users. Essentially, this removes a major weapon from the entertainment industry’s legal arsenal against file-sharing. It says that the industry may not go after file sharing services as long as their users merely use their software to download material which they receive directly from other users. Or, as the Times article states:
it is not up to the courts to adapt copyright law to the effects created by new technologies.
The RIAA had a typically whiny response to the ruling:
Mitch Bainwol, chief executive of the Recording Industry Association of America, issued a statement saying the appellate court ruling, “does not absolve these businesses from their responsibility as corporate citizens to address the rampant illegal use of their networks.”
In other words, it claims that it is part of the “corporate reponsibility” of file sharing services to stamp out “illegal” file-sharing. Gee, didn’t we just get over saying that the Court ruling rejects that argument? I guess Mr. Bainwol wasn’t listening when we went over that lesson. Pay more attention in class next time, Mr. B.!
To further emphasize the newspaper’s position, it wrote an editorial, Grokster and the Information Exchange, which put the issue quite strongly and eloquently:
This decision does not make illegal file-sharing legal. But it implicitly raises a question central to most copyright battles. Is society better served by restricting or even prohibiting new technologies to protect the rights of copyright owners or is there a greater good in the widest possible exchange of information?
Considering that the Times itself is a major media company with some interests in possibly restricting access to its own copyright media materials, I find its editorial position to be refreshingly open.
Those of us bloggers who copy digital media for use in our blogs should be heartened both by the Ninth Circuit decison and by the Times’ progressive response. This by no means fully vindicates my position that non-profit bloggers should fall under the fair use provisions of copyright law, but it lays out some small amount of groundwork to get us there.