A P2P Win?

The Ninth Circuit Court of Appeals (which is part of the second level of the U.S. federal court system) upheld a lower court decision that the makers of P2P software aren’t liable for illegal activities conducted with their software.

This is nothing new, and anyone who tells you otherwise or who tells you, “the war is over, we won” is either very ignorant legally or is not being truthful.

It comes as no surprise here the court ruled the way it did. As a matter of fact, we told you just that a year ago.

Here’s what we said back then:

MGM plans to appeal the Grokster case, in which a court ruled that Grokster wasn’t legally responsible for the illegal actions committed by people who use it.

BTW, the Grokster decision is the reason why RIAA is suing people. The court simply said that the people committing the illegal acts were the ones to go after, not Grokster.

The appeal doesn’t appear to have a prayer on legal fundamentals (but see below). The only issue on which the decision might be reversed in the issue of involvement by Grokster in the acts of infringement.

What appears to be the deciding factor in these cases is the degree to which the network in question actively assists in the process of infringing.

Napster providing a lot of active assistance. That was no good. Grokster apparently didn’t. It just provided the tools and had no part in the process of people actually using them.

It’s very doubtful the appeals court will reverse the decision; I doubt RIAA’s lawyers really expect that, either.

At least not immediately.

Grokster was decided on the basis of Sony. Sony is a very misunderstood case. People think the Supreme Court said in Sony, “You can’t pass a law prohibiting things like VCRs.” Wrong.

What the Supreme Court said in Sony was that “It is Congress’ job to decide these things. If Congress wants these things to be illegal, then they ought to pass a law. Until they do, it’s OK.”

The Supreme Court makes different kinds of decisions. Some are based on constitutionality. Many aren’t; they’re just based on interpretations of the law. Sony is the second type.

Congress could pass a law tomorrow effectively overruling Sony to ban P2P networks, and the Supreme Court would almost certainly say, “OK.”

Appealing Grokster is simply another way the content providers tell Congress, “Uh, you better do something.”

What we said a year ago is just as true today. So long as the Sony decision is considered to be the standard by which these cases are decided, courts are going to rule, and rule correctly, that the P2P software makers aren’t liable. If the content providers appeal this to the Supreme Court, they’re going to get the same decision.

If anybody wants a different decision, they’re going to need a change in the law. That is precisely what the INDUCE bill is meant to do, to change the law so that the Sony decision no longer applies.

So if you see folks preening over this big “win,” it’s really like professional wrestlers preening after they “win.” The outcome of this particular match was preordained.

They Won, You Lost

All this decision does is get the writers of P2P software off the hook. It does absolutely nothing to get the users of P2P software off the hook. Rather, it keeps them on the hook.

This court case has been the one and only reason why RIAA and Company have been suing people (over 3,000 at last count). The original court decision which is now being upheld basically said, “RIAA and Company, you have to go after the users, not the companies.”

So they did.

This court decision guarantees that the lawsuits will continue, and will do so until there’s a law change.

So when these folks dance around claiming victory, what they are effectively doing is celebrating you continuing to be cannon fodder and taking all the legal risks.

And how risky is that? Well, if you’re an active P2Per, the odds on getting sued by the RIAA is the U.S. are roughly the same as the odds on the average American getting murdered.

Granted, these are still long odds, in the 10,000:1 range, but it’s no longer lottery odds.

Still want to join the victory dance?


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