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Thoughts on VSDA's brief in MGM v. Grokster...

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The Video Software Dealer's Association submitted a brief supporting the reversal of MGM v. Grokster. Here are my thoughts (in an extended entry so that it doesn't pollute your reader if you don't want to read legal stuff):

Note: We're archiving MGM v. Grokster briefs here.

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  1. There's an interesting discussion, at 3-6, of whether or not "distribution" under the Copyright Act (17 USC 106(3)) applies only to material objects per the definition in 17 USC 101 of "copies or phonorecords" applying only to "material objects... from which the work can be perceived, reproduced or otherwise communicated."

    This seems to imply that nonrivalrous goods - those things in economics which do not require resources to duplicate, like ideas - can be copied without implicating the right of distribution. The VSDA recommends "dissemination" to be used for the spread of a nonrivalrous product regardless of how it spreads. This seems reasonable.

  2. I find their argument, at 6-7, that the term "file-sharing" is a misnomer to be contrived. That is, nonrivalrous goods can be shared. I can share an idea with you... I still have the idea, and I can't take it back (and even trying would be some wicked medieval shit). This is purely a move to get more anti-file-sharing spin into the conversation. I can see how "file-trading" is a slight misnomer as trading usually entails exchanging rivalrous goods... however, you can still trade ideas, recipes, etc. In case you're interested in how many ways these words are used to cover rivalrous and nonrivalrous transactions, here are the OED entries for both share and trading.

  3. I take their point that lower courts did not inquire into other methods of forcing the p2p services to eliminate infringing works. However, is there any technology that can be reliably be used to "filter" infringing works that doesn't seem ridiculous?

    If we used, say, a hash-based algorithm that would not let files be shared on a network that matched a particular hash (the opposite policy, that only approved files could be traded, is too ridiculous to even spend time on), copyright holders could upload hashes of each of their works into a database and each file, before being allowed to be downloaded, would be checked against the hash database. This seems like something that could be implemented (although the centralized database seems to be more control than Grokster may be able to exert).

    This leaves some vexing questions. What about all the variations of a work? Each variation would need it's own hash. Further, hash values can be changed easily by changing just a small part of the input file... say, cutting a second off of a song or a movie or changing a pixel in one frame of a movie. Copyright holders would need to be able to submit hashes for new copies of their works that show up on p2p networks. This could be ripe for war and abuse. It would be easy to defeat; that is, people can just change every part of a file so that the file they're attempting to trade would eventually come across as a tradable hash. Second, with so many hashes needing to be submitted on a regular basis, this could make a low bar for examining the validity of each hash (does the hash you're claiming correspond to a work you have copyright interest in). This means that copyright holders could conceivably stop the dissemination of any such work that just happened to use part of their work... without judicial review (which is necessary in a bunch of cases because of the conflict between the goals of copyright and its codification). Third, with so many hashes to check, it could take a while to check a particular file against a databases of hash values (although if the hash is calculated when the user adds files to a shared folder, and comparisons are made in the background, their could be significant gain in efficiency).

UPDATE [2005-01-23 11:14]: Derek, with his typical penitrating acumen, strikes the core of their argument ("VSDA / John Mitchell Grokster Brief"):

Distinguishing Sony because it only dealt with enjoining the technology altogether seems wrong to me. In terms of interpreting Sony, I think the Court resolved how we should treat redesigns, as I discussed here. From a normative perspective, I think Sony was right to not assess potential redesigns and simply use the substantial non-infringing uses rule, as I discussed here.