April 30, 2003


Today was the last day of 1L classes. It’s been a good year.

For the next month or so, postings are likely to be sparser. I have exams until the 16th, then two weeks of Law Review petitioning period.

April 28, 2003

Field Trip

From the Village Voice review of the Yeah Yeah Yeahs’ new album Fever to Tell, out tomorrow:

Fever doesn’t sound as much like it was recorded inside a toolbox as the Yeah Yeah Yeahs EP, but producer David Andrew Sitek has left its edges far too jagged to conquer the Mall of America.

So somebody really needs to take a boom box with Fever to Tell in it down to Bloomington and see if that’s the case. Could make for an amusing afternoon. After exams and petition, perhaps.

April 26, 2003


If I ever start blogging like this, somebody please let me know, OK?

Betamax Lives!

The United States District Court for the Central District of California granted summary judgment in favor of defendants Grokster and StreamCast in MGM v. Grokster on Friday. In this case, movie studios and other copyright holders sued two peer-to-peer software companies for contributory and vicarious copyright infringement, since copies of protected works were available for download by users of their software. The court ruled that because neither defendant has any control over the infringement as it’s happening, they can’t be liable. A fuller analysis of the decision follows.

Contributory Infringement Claim. The question we need to ask, with regard to contributory copyright infringement, is “whether actual knowledge of specific infringement accrues at a time when either Defendant materially contributes to the alleged infringement, and can therefore do something about it.” This becomes important because defendants have a general baseline knowledge that the service is being used for copyright infringement. The crucial distinction is that, to be liable, they have to (1) actually know about a specific infringement (2) in time to stop it, and (3) fail to stop it. They’re not liable if they just fail to act on their generalized, nonspecific knowledge if infringement. Providing the “site and facilities” for infringement, like having the searches run through your servers, was held to be enough to meet this standard in the Napster case. Taking each defendant separately:

  • Grokster. It runs on FastTrack, which is a proprietary protocol not controlled by Grokster itself, but rather controlled by Sharman Networks, the KaZaA people. It works by having each client connect to a “supernode,” through which it does its searches. These “supernodes,” in turn, connect to each other, and appear to find out about each other through “root supernodes,” most of which are operated by Sharman (but not by Grokster). Because there’s no way for Grokster to (1) know about or (2) stop any particular infringement, they can’t be liable. They never see the searches, and even if they did, they couldn’t stop them, since they’re going through either client supernodes or through Sharman’s root supernodes. Now, Sharman might be liable, but that’s not what we’re deciding here.
  • StreamCast. It uses the open Gnutella protocol. The client finds some other machine running Gnutella, through a public host cache (not run by StreamCast), by word of mouth, or through some other means. Searches are passed from machine to machine in a truly peer-to-peer way; the network has no center at all. The bits from the users never touch any machine run by StreamCast at any point. Therefore, StreamCast doesn’t have actual knowledge of any particular infringements, and even if they did, they’d be powerless to stop them. Once there are Gnutella clients out there, nobody can shut down or filter the network, since there’s no central point you can shut down or filter. Everything takes place between the peers.

Vicarious Copyright Infringement Claim. To be liable, defendant must (1) have a “direct financial interest” in the infringement, (2) have a right and ability to stop the infringement, and (3) fail to stop it. Knowledge of infringement is not required. On the financial benefit side, the plaintiffs have it. Both defendants derive a bunch of ad revenue from their sites, and the availability of copyrighted content is a big draw, leading to much higher ad revenues. They have a direct interest in keeping those revenues high by maintaining the availability of infringing content. On to the second element, the right and ability to stop infringement. For the reasons given above, neither defendant has the ability to stop the infringement. Grokster doesn’t because they don’t control the servers; StreamCast doesn’t because there are no servers. So there’s no vicarious copyright infringement.

April 25, 2003

Three on Fox News

First, the head of the BBC appears to be just as disgusted as the rest of us when it comes to Fox’s ajournalistic coverage of Gulf War II.

Second, it appears the bastions of morality and right thinking in a sea of unamerican media skeptics at Fox News are smuggling stolen Iraqi artifacts and financial instruments out of the country.

Third, an anecdote. We were discussing conspiracy to commit arson in Crim yesterday. The professor was making the point that under some circumstances, the purchase of a newspaper could be the “overt act” needed for conspiracy liability to attach. “Say one co-conspirator goes and buys a newspaper, and takes it home with him. It would be difficult to show that this was an act in furtherance of a conspiracy to commit arson. But say a co-conspirator goes out and buys a copy of the New York Times and a copy of the Murdoch paper. We know which one’s for reading and which one’s gonna get soaked in gasoline and stuffed under the porch.”


I recognize that this is a strange thing to say, but this article in the Yale Law Journal really brightened my morning.

April 23, 2003


Christopher Hitchens, we hardly knew ye.


A sparkling piece on the new reality TV shows, from the New York Times. The first line is classic:

Just as Camille got a rosy glow before she died of consumption, the newest crop of reality shows is getting better even as its ratings decline.

April 22, 2003


Does anyone else think it’s weird / cool that you can download a PDF of SARS?


My beloved Rhapsody service is to fall into the hands of the RealNetworks barbarians. They’re going to roll it in with their RealOne subscription services. Terrible.

They lost most of their credibility with me when they started burying the link to the free RealPlayer, leading innumerable clients of mine to think they needed to pay for the $29.95 SuperHyperRealOnePlayerToRuleThemAll to listen to RealAudio streams.

And their RealOneGuide page doesn’t render right in Mozilla. Grr.

UPDATE, 23 April 2003: All right, it turns out it’s not as bad as all that. It’s strongly implied in the press release that Rhapsody will keep operating as a service independent of RealOne SuperPass. And, amazingly, the free player is featured on the home page quite prominently. I hadn’t looked in a while. It looks like their revenue model has shifted again. At first, they were going to give away the client software and make their money selling the server software and services to content providers. Then they switched to trying to make $29.95 from end users unable to find the “free player” button. And now they’ve switched to providing name-brand subscription content, which may actually be sustainable.

RealNetworks is also a primary investor in MusicNet, one of the major-label-owned streaming music services that competes with Rhapsody. It will be interesting to see how that situation shakes out. They say int he press release that ” RealNetworks remains a committed investor in and technology partner of MusicNet, a leading online music company formed by RealNetworks, AOL Time Warner, Bertelsmann, and EMI in 2001.” I don’t think that will last.

Disclaimer Haiku:
West wind seems to say,
"This is not legal advice;
I'm not your lawyer."

(And if you're a client with whom I have a preexisting attorney-client relationship, this still isn't legal advice.)

In case you're wondering, this blog is also not intended as advertising, as a representation of anything but my personal opinion, or as an offer of representation.

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