The transcripts are NOT out...

for the Grokster vs MGM case...

Still, here is an exchange I really liked from the 9th circuit hearing:

Judge Noonan: Well, I read one of the briefs that said there was something like seven hundred million files, is that correct?

Frackman: Oh, I would imagine, many many more than that.

Judge Noonan: Many more. And that your highest figure of your protected uses was 90%, so 10% of seven hundred million or something, are noninfringing. That sounds like a lot of noninfringing files to me.

That looked like such a setup to me... I listed to the audio and when Frackman said "many many more than that", I don't think he knew what was coming next, because clearly Judge Noonan says that if 90% of a lot is a lot, then 10% of a lot is still... a lot!

As for the transcript of the Supreme Court March 29th hearing, it looks like it might take a month before they are available.

No Powerful DMCA in Canada?

From Michael Geist's website:

Government of Canada Unveils Plans for Copyright Reform

DVD Jon, take 2?

Well really take 20, but...
This cat and one button mouse game seems to have no end.

Where is Sony?

You've got to wonder which side is Sony on. After all their name is used all over the place. I liked this paragraph from American Conservative Union:

The Sony doctrine is the basis for the extraordinary flowering of technology and innovation that has characterized the American economy for the last 20 years. Under the protective umbrella of the Sony doctrine, America’s best and brightest entrepreneurs have introduced ingenious new products that have added billions of dollars to the U.S. economy while increasing the quality of life of American
consumers.

Clearly you would think Sony would be on the side of Grokster. Not quite...

From the brief filed by the motion picture studio and recording company:

Sony Music Entertainement Inc.
Columbia Pictures Industries, Inc.
Sony Corporation
Arista (belongs in part to Sony)
etc..

So I guess buying all the media companies has an influence on you, the same way Sony missed the boat with MP3 players... but then again...

Who do we have on the side of Grokster? The Consumer Electronics Association. Who is a member of the Consumer Electronics Association? Yes you've guessed it, Sony!

That's the safest bet ever: 1 dollar that Sony wins and 1 dollar that Sony loses.

Did I read that right?

This is from the Amicus brief of the United States:

Unlike traditional Internet transactions, in which a user’s computer obtains information from a specific website operated by a central computer “server,” P2P networking software gives users direct access to the computers of other users on the network.

Did I read this right? Since when is there a traditional Internet transaction? I thought the internet was really a decentralized network of peers, where information would get from point A to point Z while traversing a series of other points along the way, where everybody has an address (IP) and where nobody had really more importance then others in terms of what they can do (with obvious exceptions like controlling a top level domain, or being some kind of backbone, etc.). On top of that, I am not sure what they base "tradition" from. Is it from the latest b2b site? the dot com boom b2c sites? It's really funny how they frame this.

The annoying links again...

When we had all but forgotten about the 2600 lawsuit, Laurence Lessing refreshes our memories:

Dear syndicators of Bill: Me thinks there's no such concept as illegal linking (outside of China, at least, and please, don't pester me with misreadings of the 2600 case).

It's so sad that in 2005 part of the digital rights topic still has to include the topic of linking. Instead of talking about more complex or interesting issues, the Creators Syndicate gives us some "Déjà vu all over again".

I have to admit, I still haven't recovered from the 2600 lawsuit.

To follow up on the innovation topic

While reading the intel brief, this caught my attention:

III. B. If This Court Were to Reject Sony in Favor of One or More of the Alternative Tests Urged by Petitioners and Their Supporting Amici, Intel and Other Technology Innovators Would Innovate Less Since Uncertain Liability Standards Would Present Irrational Risks

So I guess if we add the Napster logic and the Intel logic (who are on opposite sides), Napster can't innovate if Grokster can, but Intel can't if Napster can. Who is the real inventor among us? Answer can be found in:

IV. D. The Entertainment Industry Is Resilient and Has Historically Innovated Effectively to Meet the Market Challenges Posed by New Technologies

So everybody can innovate, it's just that entertainment industry hasn't found its true invention yet (I guess that would exclude the "new" Napster)

The "Napster" brief

This is one of the briefs that caught my attention. Napster, filing on the side of the petitioners? Did I read that right? One could think that considering the origins of Napster they would at least refrain from taking any sides but I guess nothing is sacred, not even your origins.

One part I really liked was on page 9, where it is written that:

Despite the fact that amici's services offer higher quality files and features than Respondents' services, amici do considerably less volume than Respondents for one simple reason. Respondents offer their stolen content for free, a price impossible to beat for legitimate businesses which acquire the rights to sell their product and support systems to track, account and pay for those rights. Both amici's and Respondents' success depend on the volume of users.

Where to begin? First it's really hasty to conclude that there is one simple reason. For example, even though water might be free coming out of the tap, does it mean that bottled water companies can't compete with the product because it's free?

On top of that, they state that their services offer higher quality files and features that the "free" services. This is not completely correct. For example, if Ford sold a car that had way more features than BMW but that would only take Ford fuel (sold at ten times the price of the normal fuel), could we be shocked that Ford isn't succeeding? Most paying services (with a few notable exceptions) also include DRM which is a foreign concept to music. An MP3 file on those systems, just like a CD you buy, doesn't come with strings attached. The file you get from Napster comes with many strings. Did you remember agreeing to a 10 page license agreement when you bought your last CD?

Finally, while it is true that you are not directly paying for the file when acquiring it over free networks, it is not true that the cost is "free". There are other costs you might incur, such as time lost and frustration. For example, it might take you some time to download that mp3 file. Maybe you'll get some corrupted version. Maybe the ripping wasn't done right. There are clearly other facets to the cost than the one mentionned in the brief.

And one more, the title of point B on page 6 makes me smile:

B. Amici Are The True Innovators, Not The Respondents

Without going into the detail of the explanation, I found it amusing to compare these two technologies. Who is the judge on "true innovation". Maybe I find supernodes to be a great invention. Maybe it's the DRM. Maybe it's the way they hash files so that multiple people can contribute to the transfer of one file at the same time. This paragraph takes a very narrow view on the definition of Innovator, essentially one that only allows room for their accomplishements.

MGM vs. Grokster

Over the next few weeks I will be commenting over the MGM vs. Grokster law suit. As you might know, this case will be heard before the Supreme Court on March 29th. EFF is defending them and this is a very important case.