June 29, 2005
DONNAS PWN 3V3RY1!!!!!!!!!
EEEEEEEEE!!!!!!!!| Comments ()
June 27, 2005
On SCOTUS's Grokster Decision
Okay, SCOTUS, (Supreme Court Of The United States) handed down its MGM v Grokster decsion, and predictably, (and sadly) most of the web commentary is best described as mindless panic, even though there's no real reason for it.
This is not new, but you occasionally hope.
Now, before we go any further, I want you go and read the decision. It's not long, (The primary decision's only about 5 pages) and it's really not a hard read. Go ahead, I'll wait. Make some notes if you like, I'll get some coffee.
See? Wasn't that hard. There, now that we're all on the same page, let's delve into this fascinating bit of legalese.
First, the basic complaint: (Note: I don't change any of the quotes from the decision beyond reformatting them to remove hard breaks and unnecessary hyphens)
Respondent companies distribute free software that allows computer users to share electronic files through peer-to-peer networks, so called because the computers communicate directly with each other, not through central servers. Although such networks can be used to share any type of digital file, recipients of respondents' software have mostly used them to share copyrighted music and video files without authorization. Seeking damages and an injunction, a group of movie studios and other copyright holders (hereinafter MGM) sued respondents for their users' copyright infringements, alleging that respondents knowingly and intentionally distributed their software to enable users to infringe copyrighted works in violation of the Copyright Act.
That's the basic case there. MGM is saying that the defendants created and distributed their software primarily to enable their users to infringe on copyright. It doesn't say that all P2P is bad, although I'm sure MGM and the rest think so. It's saying that Grokster's set their software up for copyright infringement.
Here's the first important bit from the second paragraph:
Respondents are not merely passive recipients of information about infringement. The record is replete with evidence that when they began to distribute their free software, each of them clearly voiced the objective that recipients use the software to download copyrighted works and took active steps to encourage infringement. After the notorious file-sharing service, Napster, was sued by copyright holders for facilitating copyright infringement, both respondents promoted and marketed themselves as Napster alternatives.
This is the important bit, and it's going to pop up again. This is saying that Grokster didn't just hand out the software for people to “use as they will”. This part is saying that there's clear evidence, and lots of it, that Grokster made one of the objectives of their software the downloading of copyrighted works, and actively encouraged this. They even positioned themselves as alternatives to Napster after Napster's first incarnation was bombed back to the Stone Age. This would be analogous to Smith and Wesson advertising the Model 29 as “The best way to blow your neighbor's head off”. Advertising illegal uses as a primary purpose of a product is, what most in the legal profession would probably call “dumb”.
Next, SCOTUS restates what the Ninth Circuit court found in its affirmation of the District Court's summary judgement for Grokster:
While acknowledging that respondents' users had directly infringed MGM's copyrights, the District Court nonetheless granted respondents summary judgment as to liability arising from distribution of their software. The Ninth Circuit affirmed. It read Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417, as holding that the distribution of a commercial product capable of substantial non-infringing uses could not give rise to contributory liability for infringement unless the distributor had actual knowledge of specific instances of infringement and failed to act on that knowledge. Because the appeals court found respondents' software to be capable of substantial noninfringing uses and because respondents had no actual knowledge of infringement owing to the software's decentralized architecture, the court held that they were not liable. It also held that they did not materially contribute to their users' infringement because the users themselves searched for, retrieved, and stored the infringing files, with no involvement by respondents beyond providing the software in the first place. Finally, the court held that respondents could not be held liable under a vicarious infringement theory because they did not monitor or control the software's use, had no agreed-upon right or current ability to supervise its use, and had no independent duty to police infringement.
Here we see the lower court decisions that applied Sony v Universal as saying that because Grokster has substantial uses other than copyright infringement, and that Grokster was, due to the design of the software unable to monitor how its software was used, that it was not liable for how those using its software used it. Furthermore, that because there was no centralized server, and Grokster didn't monitor or control the use of the software, due to both the use agreement and technical feasibility, it had no duty to police the use of the software. This is Grokster's case in a nutshell. “We don't know what people do with our stuff, and we can't monitor how they use it, so how can you hold us responsible for how they use it?” The District Court in the case agreed, and handed down a summary judgement, and the Ninth Circuit Court upheld that.
Now onto the next bit...this relates to the point of “If you market a product's illegal uses, you're responsible for that illegal use”:
Held: One who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, going beyond mere distribution with knowledge of third-party action, is liable for the resulting acts of infringement by third parties using the device, regardless of the device's lawful uses.
Again, if you make a product, and then promote the nefarious use of that product, even fostering such use beyond saying “Here it is, do what you want with it”, then you're liable for the resulting acts. But did Grokster do this? SCOTUS says they did. SCOTUS does point out that the point isn't just “Someone did something bad with your product, you're at fault”. If that was the case, then there'd be a lot of people suing the makers of the Louisville Slugger, along with anything else that can be possibly used as a weapon. SCOTUS says that in cases of copyright infringement, Sony said you can't hold person A directly responsible for person B's actions. However, if person A is actively encouraging person B to infringe on copyright, then person A is said to be liable for contributory infringement:
One infringes contributorily by intentionally inducing or encouraging direct infringement, and infringes vicariously by profiting from direct infringement while declining to exercise the right to stop or limit it. Although “[t]he Copyright Act does not expressly render anyone liable for [another's] infringement,” Sony, 464 U. S., at 434, these secondary liability doctrines emerged from common law principles and are well established in the law, e.g., id., at 486. Pp. 10-13.
Even if you don't directly commit the infringing act, if you are seen to be actively encouraging the infringement, you can still be held liable. Furthermore, while Sony did deal with secondary infringement. That decision said that first, recording a program for the sole purpose of time-shifting it for personal use was allowed, and secondly, Sony didn't encourage users of the Betamax to infringe on copyright, nor did it profit from copyright infringement. Because of that, the only way to bust Sony was on the fact that they were distributing a product that could be used to infringe on copyright. However,
Because the VCR was “capable of commercially significant non- infringing uses,” the Court held that Sony was not liable. Again...in the Sony case, Sony wasn't actively encouraging people to break copyright, and you can do tons of stuff with a VCR that wasn't centered around copyright infringement.
Because of that, SCOTUS disagrees with the Ninth Circuit's application of Sony:
In this case, the Ninth Circuit misread Sony to mean that when a product is capable of substantial lawful use, the producer cannot be held contributorily liable for third parties' infringing use of it, even when an actual purpose to cause infringing use is shown, unless the distributors had specific knowledge of infringement at a time when they contributed to the infringement and failed to act upon that information. Sony did not displace other secondary liability theories.
What SCOTUS is saying is that the Ninth Circuit read Sony to mean that because Grokster has substantial non-infringing uses, unless you could show that Grokster had specific knowledge of all the violations of copyright its software was being used for and failed to act on that knowledge, Grokster was immune from liability for those infringements. SCOTUS says this is an incorrect interpretation of Sony, as that decision did not overrule all secondary liability theories. AKA, Sony was not a “License to Kill”.
The next paragraph goes into more detail, but this is the critical part:
Evidence of active steps taken to encourage direct infringement, such as advertising an infringing use or instructing how to engage in an infringing use, shows an affirmative intent that the product be used to infringe, and overcomes the lawís reluctance to find liability when a defendant merely sells a commercial product suitable for some lawful use. A rule that premises liability on purposeful, culpable expression and conduct does nothing to compromise legitimate commerce or discourage innovation having a lawful promise.
This is a critical part. Just because your product has non-infringing uses, if you actively encourage infringement as a use of your product you're liable. It also says that just because one vendor of a product encouraged infringement as a use of their product does not meant hat all similar products from all vendors are to be viewed in the same way. In other words, P2P isn't inherently bad, but if you advertise it as a way to infringe on copyright, you're gonna get screwed.
Now, onto the next part. This would be the bullet to the brain of the Ninth Circuit's decision.
On the record presented, respondents' unlawful objective is unmistakable. The classic instance of inducement is by advertisement or solicitation that broadcasts a message designed to stimulate others to commit violations. MGM argues persuasively that such a message is shown here.
Bang, you're dead. Grokster was actively encouraging infringing use of their product, and MGM was able to show this.
Three features of the evidence of intent are particularly notable. First, each of the respondents showed itself to be aiming to satisfy a known source of demand for copyright infringement, the market comprising former Napster users. Respondents' efforts to supply services to former Napster users indicate a principal, if not exclusive, intent to bring about infringement.
By marketing yourself as the replacement for a service whose, (in its original incarnation), sole reason for being was copyright infringement, Grokster was specifically targeting its software for use by a large population of known copyright infringers. That's probably not the smartest way to prove that your software isn't primarily designed for copyright infringement.
Second, neither respondent attempted to develop filtering tools or other mechanisms to diminish the infringing activity using their software. While the Ninth Circuit treated that failure as irrelevant because respondents lacked an independent duty to monitor their users' activity, this evidence underscores their intentional facilitation of their users' infringement.
This part's kind of weak. The Ninth Circuit said the lack of filtering tools or other infringement prevention mechanisms was not Grokster's job, and SCOTUS uses this as evidence of Grokster's liability. The truth is, in a decentralized P2P setup, such as Gnutella - based systems, it's effectively impossible to monitor what people are doing with the software, and once you can successfully transcode the file to say, AIFF, then all you really have to go on, (feasibly) is the file name, which is completely unreliable. SCOTUS kind of screwed up here, although the supporting opinions in this case address this technical issue a little. (No, I'm not going into those, as for the purposes of this article, they're redundant, but I hope you read them. They're neat.)
Third, respondents make money by selling advertising space, then by directing ads to the screens of computers employing their software. The more their software is used, the more ads are sent out and the greater the advertising revenue. Since the extent of the software's use determines the gain to the distributors, the commercial sense of their enterprise turns on high-volume use, which the record shows is infringing. This evidence alone would not justify an inference of unlawful intent, but its import is clear in the entire record's context
This part's saying that Grokster makes money by selling advertising in its product. By itself, this is neither good or bad. But, since Grokster actively encouraged using its software to infringe on copyright, and because the more copies of its software are in use, the more money they make, well, this just doesn't help them at all. Taken in context with encouraging infringement, this is just another nail in the coffin of Grokster's case.
In addition to intent to bring about infringement and distribution of a device suitable for infringing use, the inducement theory requires evidence of actual infringement by recipients of the device, the software in this case. There is evidence of such infringement on a gigantic scale. Because substantial evidence supports MGM on all elements, summary judgment for respondents was error. On remand, reconsideration of MGM's summary judgment motion will be in order. Pp. 23-24.
380 F. 3d 1154, vacated and remanded.
No big shock here...the fact that the biggest use, by far of Grokster was to blatantly and massively infringe on copyright, when combined with the other decisions SCOTUS came to, well, the lower courts' summary judgement and support of said summary judgement is gutted. The summary judgment is vacated, and it goes back to the lower court for trial.
So yeah, Grokster lost, but SCOTUS didn't issue a blanket condemnation of P2P. They didn't say anyone using P2P is guilty. They said that Grokster was being shady, and that the lower courts should have actually had the damned trials instead of just issuing summary judgments.
Again...SCOTUS said, “Grokster created and aimed this software at the Napster crowd, and encourage it as a music sharing product”
SCOTUS didn't say “All P2P is only for copyright infringement, and if you use it for any reason, you're a criminal”.
So can we all CALM THE HELL DOWN?
Thanks.| Comments ()
June 25, 2005
I see you...thanks AOL!
AOL has a really neat concept for Windows users: AIM Sync.
The idea with AIM Sync is that you can get presence information in Outlook for people on your buddy list. However, there's something that's barely touched on that kind of bothers me. It's this paragraph in the description:
With AIM Sync, you can add Buddies from your Outlook Contacts to your AIM Buddy List feature with one click of your mouse. Instantaneously, AIM Sync will scan your Contact list and match up email addresses with AIM screen names in the AIM database. It will even let you list your instant buddies according to their screen names, mobile phone numbers or both.
I admit, I misread that. Because there was only one way I would have implemented this. As it turns out, AOL thought differently.
What I thought would happen, and what I still think should happen is that AIM Sync compares your Outlook contacts with your buddy list, and enables AIM presence and other capabilities for the people in your buddy list who are also in your Outlook contacts.
That's not what happened. Instead, AIM Sync compared my contact list to the main AIM database and poof! I now have about 300 AIM buddy names I didn't have before. None of the new people gave me their AIM names. But I have them anyway.
Again, I admit to seeing what I wanted to see instead of what really was in that description. Even with that, this creeps me out. I view AIM and other IM ids like a phone number. If you don't want me to have it, you should be able to do that. To not give me your AIM ID. You shouldn't have to go through hoops for this. This plugin means that you don't have a choice in this matter. If enough of your info makes it into my Outlook contacts, (Yes, yes, I know, I use Entourage, not Outlook. Well, Entourage syncs with Exchange, and since I support Outlook users, I also use Outlook 2003. Thanks to Entourage's Exchange support, if Entourage knows about you as a contact, so does Outlook), and you have an AIM buddy ID, I can have it too.
Some folks have multiple AIM names, and they use specific ones for groups of people. Well, guess what, all your AIM names are belong to me. Didnt' want me to know your AIM name, (and no, if you didn't, I'm not offended in the least, so don't worry about that. Not everyone needs or wants me to talk to them all the time. I'm not the center of everyone's universe.)? Too bad, I have it now.
I'm not accusing AOL of doing anything illegal here. I'll bet a dollar that they're well within their rights to do this. But...it feels wrong. In a creepy kind of way. Like someone found a diary with mildly personal info and published it. It's not damaging, but it bugs me. I still think AOL Sync is a good concept, but it should be a data vacuum from AOL to me. I'd much prefer if they rework it so that it only works with existing buddy list data. Don't add to my buddy list, just work with what's already there. Simple, and less creepy.
Oh yeah, and offering to spam everyone in my contacts list with “Hey, John noticed you don't have AIM, and that makes him sad. You should get AIM” emails? That's really lame guys, even for a company widely regarded as the land of the lame.| Comments ()
June 6, 2005
Apple goes to Intel...and?
Yes, we've all seen the news. Apple is moving to Intel. Cute logos aside, what's it mean?
Well, that depends on who you are and what you're doing. From a price point, you're not going to see any monster drop if you see a drop at all. There's just not a huge difference in price per CPU for Apple between Intel and IBM.
If you're a network admin, and I am, there's not a huge difference. Filesharing is processor independent. Kerberos and authentication is processor independent. Printer sharing, web serving, blogging, chat, all of these things work across the variety of CPUs out there.
The people who kind of take it in the shorts are the people heavily relying on esoteric Altivec functions, but that could change.
One important thing to remember is that while the dev kits are based on current Pentiums, the hardware Apple ships in the 2006/2007 timeframe won't be. Intel is basing future chips on their mobile pentium architecture, which will answer one of Apple's needs since the G5, a fast mobile CPU.
If you actually listen to the keynote, Steve didn't say “The G5 is crap, Intel R00lz”. He said it was based on what's going to happen down the road. Looking at IBM Microelectronics, Apple's a weird customer. They need stuff that is not inline with the high-end server processors like you see for the zSeries/iSeries/eSeries boxes, and they're not inline with the embedded markets ala the Xbox and PS3 needs. So the feeling I get, based on IBM's reaction is that they really weren't going to be that attentive to Apple's needs. But then, over the last year, they've been getting out of the PC business anyway. This is the final step in that process.
But this is what Intel does. Yes, they have a solid embedded product line, and the Itanium on the high end, but, their bread and butter is the PC, or now the pc. Apple is a major coup for them, and as an early look, it's a good partnership for Intel. Face it, Microsoft is not a major SSE/Altivec - level player. They don't care about vector code, and the lagging of SSE behind Altivec is a possible result of that. But intel has to really hate the spanking they've gotten in the HPC arena. Now, Intel has a partner who has been the one doing the spanking. I can easily see some real improvements to SSE in the chips that Apple eventually ships in their products. They won't be identical to Altivec, but Apple does a lot of real, solid, useful microelectronic R&D. I'm willing to bet there's some IP sharing in this agreement. They also get a partner who can spark sales outside of Microsoft.
Think about that sales curve that Steve showed. The Intel one kinda sucked, compared to the Apple one. While a lot of that has been due to a rather flat performance curve of late from Intel, (to be fair, from everyone), but a lot of it has been due to Microsoft. The last big reason to buy new boxes in the non-server Windows space was XP. In the server space was Windows 2003 Server. (64 bit is at the “who cares” level WRT to sales still. It's a curiosity, not a platform strategy on a wide level.) That's it. You're not going to see major product from Microsoft until the end of 2006. Yes, Longhorn technologies are being backported to XP, but that's kind of a “robbing peter to pay paul” game. If I can run 90% of Longhorn in XP, why buy Longhorn? Yes, Longhorn will do things “better”, but as of yet, Microsoft hasn't defined “better” in any way other than “In the Future, we'll travel at the speed of light, they'll have to lose your luggage while you're still home.” So there's not a huge compelling reason for Longhorn. (Note: in my “real” job, I work in a 90% Windows shop. So I'm familiar with the Windows world too.)
In a nutshell, Microsoft doesn't seem like it's going to drive huge new sales of Intel chips for quite a few years. That's not good for Intel. Microsoft may not care, but Intel does. Microsoft has been no help in the HPC arena. They aren't any help in the Scientific computing arena. Tablet sales are worse than Cube sales were, or not much better. Bought a new Cube lately? Yeah, thought not.
Apple changes that. Apple is a pain in the ass some days, but they're nothing like monkeyboy and his inability to not be insulting about things like Linux, which is an important market for Intel. Apple doesn't need to beat Microsoft. They don't need to beat Dell. They do a lot of their own R&D, which is a bonus for Intel. They drove USB more than every Wintel OEM and Microsoft combined. That was huge for Intel, by the way. They are a driver of new technology. They take risks. They're willing to piss people off. Microsoft pisses people off, but not in a “I'm doing cool stuff and you aren't.” way. They piss people off by being that big, stupid, clumsy kid who steps on your lunch because they can't watch where they walk.
With Apple, Intel gets a partner that's going to take them places they haven't been having big wins in. With Intel, Apple gets a partner who lives to own the space they need to live in. In a lot of ways, it's a really smart partnership, and that's how Steve presented it. For now, there's not a lot of details, so there's not much we can say other than damn. But I have to say, I think I was wrong about why this would be a bad idea. I'm not wrong often, so it's kind of cool when I am.
On another note
Not that he'll ever get this, but some of you noted that I've been harshing on Scoble on his “I know more than youuuuu do” schtick with regard to this issue. It was not that I disagreed with his conclusions. He was right about this, I was wrong. What pissed me off, and still does was his, (and a few others), little “I know something you don't know, and I'm not going to te-elll” idiocy. That's not what you want in someone representing a company. It makes me wonder about his integrity. If you know a secret, saying you know a given secret is a betrayal of that secret. He really killed his integrity in my eyes, and i'm not the only one who thinks that. He could have done something very interesting with his info. Instead, he spent days making sure everyone knew he had a bigger info dick than everyone else. Great way to show us that the point of the “blogosphere” is to be the winner in a dick-waving contest. If the purpose of blogging is to be a twelve - year - old bragging about having pubic hair first, I may just drop Movable Type so this isn't a blog. I'm really, really disgusted with the blog dorks right now, and Scoble's the head of that pack.
Great job of representing bloggers Robert.| Comments ()