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Please see the articles below…
1. What is your opinion on the subject?
2. Which ethical views (i.e., utilitarian view, moral rights view, justice view, practical view) you feel are being used by both sides of the argument (i.e., for and against downloading) to justify their positions?
High Court Enters File-Sharing Spat; Justices Must Determine
Software Providers' Liability For Copyright Violations
by Anne Marie Squeo.
Wall Street Journal. (Eastern edition). New York, N.Y.: Mar 30, 2005. pg. A.2
WASHINGTON -- The Supreme Court stepped into a historic fight between entertainment companies that create and distribute copyrighted songs and movies, and Internet companies that provide software that enables customers to unlawfully share these works.
The justices must decide whether file-sharing companies such as Grokster Ltd. -- which furnish software enabling Internet users to download music and videos from each other's computers -- are liable for their customers' copyright violations.
A main question before the court, which appeared critical of both sides, is whether legal uses of file-sharing software outweigh the illegal sharing of copyrighted material, which the entertainment industry says accounts for more than 90% of the traffic over these systems.
Donald Verrilli, lead attorney for Metro-Goldwyn-Mayer Inc.'s Metro- Goldwyn-Mayer Studios Inc. and 27 other entertainment companies, cut to the chase in his opening sentence: "Copyright infringement is the only significant use of Grokster." Seconds later, Justice John Paul Stevens cut him off with a question about legitimate uses of Grokster. For the next hour, nearly all of the justices took part in a lively argument that showed their firm understanding of a technology that primarily has been the domain of teenagers and college students.
In this case, the percentage of illegal use is critical. In 1984, the court ruled 5-4 that Sony Corp., maker of the Betamax video recorder, wasn't liable for "contributory infringement" if the video recorder had "substantial noninfringing uses" that didn't run afoul of copyright conditions. They didn't at the time specify what percentage would be considered "substantial," creating the ambiguity that exists today.
Acting U.S. Solicitor General Paul Clement, who argued on behalf of the U.S. government in favor of MGM, conceded they would accept "anywhere under 50%" as having "no liability under the Sony standard."
Mr. Verrilli hammered the point that Grokster, StreamCast Networks Inc. and others "intentionally built a network of infringing uses and actively encouraged infringement." Several of the justices picked up on the issue, with Sandra Day O'Connor repeatedly returning to the idea of Grokster's "active inducement" of others to violate copyright laws and Anthony Kennedy expressing concern about the illegal activity providing seed capital for file-sharing companies to fund their growth. Some of the justices indicated the need to address these issues in a trial at the district-court level.
Still, there appeared to be little sympathy for the entertainment companies, with their long history of filing copyright-infringement suits against individuals and companies. Justices Antonin Scalia and Stephen Breyer questioned whether it could be detrimental in the long run to cut off budding technologies.
Justice Breyer cited the Xerox machine, videocassette recorder and even Gutenberg's printing press as examples. Justice Scalia went so far as to ask the entertainment-industry attorneys if they would give the software companies 10 years "to find an acceptable use" rather than suing them "right out of the box."
High-technology companies say a decision against Internet companies could chill investment in new products and services at a time when the Internet, broadband and wireless devices are radically revamping how consumers obtain and share information. A decision is expected by June.
Outside the court, the case attracted a crowd of protesters, some carrying placards with sayings like "Save Betamax," the legal precedent in yesterday's case.
The justices heard another Internet-related case, examining whether the Federal Communications Commission erred in exempting the cable industry from having to share high-speed Internet connections with rival service providers.
The justices initially seemed fixed on why the FCC adopted different rules for the same service depending on whether it was provided by a cable or a telephone company. Still, the issue they are being asked to review is whether the FCC should receive deference as the expert agency that oversees communications issues.
Thou Shalt Not Steal
by Theodore B. Olson
Wall Street Journal. (Eastern edition). New York, N.Y.: Mar 23, 2005. pg. A.15
This is your lucky day. I have just invented a system that will enable every one of you to obtain access to virtually any and every home and automobile in the United States, as well as millions of private bank accounts. All you need is a computer. And it is free. I will get paid based on the advertising that pops up on your computer screen whenever you use this service. The best part of this system is that the more of you who use it, the more money I will make.
Imagine the pleasure you will derive from using other people's property and the things you will be able to acquire with their money. Absolutely free of charge. No permission necessary.
Of course, I must ask you to promise not to do anything illegal with this marvelous new tool. But, don't worry, I'm not going to do anything about it if you break your promise. In fact, I know that most of you will be using this system for unlawful purposes. Why else would you want it? But I can't control what you do. As long as you might use the system for a lawful purpose, for example to access your neighbor's house to water plants, I'm in the clear.
Sounds pretty scary doesn't it? And, of course, you know that I don't really have the system I've described. If I did, I would surely be shut down in an instant. Neither our government nor our society would tolerate a mechanism that would promote, enable and facilitate such a massive, ongoing and uncontrollable theft of property.
Well, it may be fortunate for you that my system does not exist. But the bad news for songwriters, recording artists, actors and filmmakers -- and the 5.5 million people who work in the $625 billion creative and intellectual property industry -- is that the system described above does exist today for the unlawful downloading of copyrighted music and movies.
These copyrighted products are being stolen every day as a result of so-called peer-to-peer file sharing systems that are available to any one of us free of charge as long as we have a computer. They are operated by companies who make millions of dollars in advertising revenues aimed at the systems' users. It has been estimated that tens of millions of songs and 400,000 movies are illegally copied in this manner every single day.
Later this month, in MGM Studios v. Grokster, the Supreme Court will consider the legality of these systems. The companies claim that they have no responsibility for the damage they are doing because they have willfully blinded themselves to the details of the infringement that is taking place in their systems. Yet, according to the record in this case, it is not seriously contested that the overwhelming use of the systems -- over 90% -- is for unlawful copyright infringement. Indeed, the U.S. government says that these networks were marketed specifically based on their "capacity for infringing uses in order to build a critical mass of users."
The Framers of our Constitution believed that private property rights are at the core of a free and prosperous society; and that property comes in many different forms, intellectual property as well as tangible property. In fact, the Framers considered intellectual property rights so important to the development of our culture and economy that they extended special protection to intellectual property through the copyright and patent clauses of our Constitution. For over two centuries, Congress has implemented these protections through laws designed to provide our creative citizens with a property-based incentive to transform their ideas into innovations and artistic works in order to stimulate creativity and promote the progress of science and useful arts.
As a result, the United States leads the world in creative output. American music, movies, books, software and other creative works are an extremely important component of our national economy and constitute our second leading source of exports. Approximately 6% of our gross domestic product is derived in one form or another from our creative community.
Grokster-type enterprises deprive our artists, musicians and software developers of the financial incentive and sources of capital necessary to develop original works. In the short term, this harms the creators, the investors, and those who labor in the creative vineyards. No one will pay for their products if they are available without cost. In the long run, however, it will be the public and future generations who will pay the price in the form of songs, movies and works of art that are not created if the law allows the fruits of their efforts to be stolen. These systems also inflict immeasurable damage to our standards and morals. By enabling millions of persons, especially our children, to take property without paying for it, we are sending a potent message that it is acceptable somehow to steal music if it is done in the home with a computer rather than stuffing CDs from a store into a backpack and walking out. That is why many organizations who represent traditional values have joined in the effort to stop this systematic and widespread theft -- unified by belief in the simple and ancient principle: "Thou Shalt Not Steal."
A coalition of family groups and law enforcement organizations have also explained in friend-of-the-court briefs that many peer-to-peer networks serve as conduits for child pornography, and facilitate credit-card fraud and identity theft. Those are indirect but very real and damaging by-products of the systems designed to facilitate copyright infringement.
The purveyors of these file sharing enterprises advance the utterly absurd defense that inhibiting their unlawful enterprise will somehow stifle innovation. Not unless stopping pickpockets stifles magicians. The fact is that innovators must have legal protection if they are to innovate. The best way to stifle innovation is to allow the theft of the innovator's product. Lawful and productive creativity is severely inhibited when cheating and theft is not controlled.
The Framers' insights are not outdated in the digital era. If anything, the advent of file-trading services confirms the Framers' wisdom -- and underscores the continuing importance of a system of property rights that protects and encourages creativity and innovation.
Mr. Olson, former solicitor general, represents the Recording Industry Association of America and the Motion Picture Association of America, Inc., and filed a brief in the Grokster case on behalf of Defenders of Property Rights.
(See related letters: "Letters to the Editor: Innovation and Intellectual-Property Rights" -- WSJ April 1, 2005)
Letters to the Editor: Innovation and Intellectual-Property Rights
Wall Street Journal. (Eastern edition). New York, N.Y.; Apr 1, 2005 pg. A.11
Theodore B. Olson, in a March 23 commentary, "Thou Shalt Not Steal," makes a good case for the protection of intellectual property. He had me right up until the end where he says, "The fact is that innovators must have legal protection if they are to innovate." Exactly. Going against his argument, suing software innovators out of existence will certainly prevent the launching of groundbreaking new software ideas that threaten the powerful status quo. Indeed, I find that risk much more plausible than the risk that artists will cease making music because they are worried someone might illegally hear their song.
On legal grounds, I continue to be amazed that the precedent of the movie studios trying to prevent Sony from producing VCRs isn't considered an exact parallel in this case. Can you imagine if the studios had been successful in banning VCRs?
On moral grounds, most people agree that illegal downloading of music is wrong, but the RIAA (Recording Industry Association of America) would do far better to co-opt these new technologies to promote legal alternatives like iTunes than to sue the folks who made iTunes possible. Make no mistake, if there had never been a Napster, there would be no iTunes today. We need the kids in the dorm rooms thinking up crazy ideas today if American industry is going to have the world-beating technology of the future.
Arthur P. Steinmetz New York
Mr. Olson's commentary is incomplete. He is correct that copyright infringement is rampant on the Internet. Why is this happening? The short answer is that many people, particularly younger Internet users, do not recognize copyright infringement as being "theft." Congress has a different sense of morality. Which is correct?
The Framers of our Constitution gave Congress the power to grant copyrights "for a limited time," a phrase that wasn't in your article. For at least a century, that limited time was, at most, 28 years. That limited time for most films is now 95 years. In fact, no commercially significant copyright has been allowed to expire in the U.S. since about 1950.
Are RIAA's members morally entitled to effectively perpetual copyrights? The Framers didn't think so. I don't either. The group has led the charge to encroach on the public intellectual domain -- to steal from all of us by reducing our freedom to create. If Mr. Olson is going to quote the Bible, he should remember Matthew 7:3.
Paul Eberhardt Portland, Ore.
The invention of means for ready copying does not make the principle of copyright less valid, it only moves the enforcement of copyright from the legal toward the moral sphere. We all lock up our property, both tangible and intellectual (or "content" in the language of the technos), because we want to prevent theft.
In your paper's technology columns, Walter S. Mossberg and Lee Gomes produce interesting columns, for which I suppose they expect to be paid. I suggest that their work should be freely distributed on the Internet, so that we wouldn't have to buy a copy of the Journal to read them. And the paper then should find some equally competent technology writers who are also equipped with a moral sense.
Howard Russell Charleston, W.Va.
Twenty years ago, the Supreme Court refused to hold a technology liable for its users' copyright infringement. The reason? That the technology (the now-familiar VCR) was capable of a "substantial noninfringing use." As the VCR was so capable, so probably is Grokster. Yet Mr. Olson argues that Grokster and similar peer-to-peer technologies should be held liable for how others use them. If that became the rule, our future might well look different than we expect.
For example, consider this: "Beam me up, Scotty!"
"No can do, captain. The transporter beam has been shut down by court order. Kids have been using their home transporter machines to zap items off store shelves. To stop the kids, a court is blocking use of the technology altogether. You'll have to find another way to get back. Theft cannot be tolerated, whatever the cost."
In the nonfictional world, we know there's no free lunch. Without copyright putting some restraints on our abilities to copy, we'd lose some of our culture -- but without some restraints on copyright, we'll lose a lot more than we can afford.
Prof. Wendy J. Gordon
(Ms. Gordon is Liacos Scholar in Law, Boston University School of Law, and Visiting Scholar, MIT, Cambridge, Mass.)
1. My opinion on the subject is in favor of the entertainment companies. This is because copyrighted songs and movies are a creative work of individuals who have put their hard work, ideas and creativity to make a song, compose its music, write its lyrics, write a script and a story and direct the movie. The hard work of these individuals is copyrighted to protect their interests and as such unauthorized download and sharing of these songs and videos are nothing but a violation of their rights.
Going forward encouraging such unauthorized download and sharing will discourage the creative personalities and reduce their morale. This will lead to a significant fall in their creative output. Copyright infringement is both illegal as well as unethical and hence should not be allowed and should be discouraged at all costs.
2. The group of people for downloading is using the practical view of ethics. The moral perception of people downloading is quite different and they are of the view that they are of the opinion that they are merely using latest technologies to download and share audio and video files and that the present and the current network is intentionally supporting such download and sharing.
The group of people against downloading is using the moral rights view of ethics. They are of the opinion that actions that interfere with other’s rights are not moral and ethical actions. They believe that people who download and share creative work are violating the rights of the copyright holders and hence their actions are neither moral nor ethical.
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