IAAL. Usually that is written, IANAL (I am not a lawyer), but in my case,
IAAL. And I'm here to tell you from 11 years in the trenches that judges are not neutral. Law is what happens when social values become written in stone. Different groups have different values. Today, some very nasty values were written in stone by the US Supreme Court. The wrong group got their values written in stone.
This case should not have been difficult to decide. Grokster and StreamCast Networks were offering legitimate services. Now, those two businesses will be held responsible for the bad acts of people they never met, and had no control over.
Clear your head now with this interview of Wendy Seltzer, an attorney arguing the case for the Grokster side, because from today and forever, you're going to hear lots of confusing BS from the the “copyright cartel”, which is the name that technology news guru Dan Gillmor uses for major record labels and the major movie studios.
From the broadcast flag to Grokster, the copyright cartel is walking around with big sticks trying to squash innovations that might compete with their business models. Should Disney be guaranteed a profit forever? Or should Mickey Mouse have to get up in the morning and earn a fair day's living just like everyone else?
In this interview, conducted at the Electronic Frontier Foundation's send-off party for their attorneys who argued the Grokster case before the Supreme Court back in March, Mad Penguin asked EFF attorney Wendy Seltzer to connect the dots for us from the broadcast flag to Grokster to open source software and open formats like Ogg Vorbis. It was a wide-ranging interview, but Wendy was equal to the task. She cuts right to the heart of the issue, and explains that what is at stake is our democratic right to comment on, parody, and generally make fun of Mickey Mouse, Donald Trump's stupid reality TV show, and starch-haired TV anchors. Seriously, for Mad Peguin readers and penguinistas everywhere, the right to code around stupid DRM lock-down initiatives is also at stake. So watch the news, but when the copyright cartel talking heads start flapping their jaws, just remember what EFF attorney Wendy Seltzer had to say here.
Due to the importance of the Grokster case, this article is one in a series of articles on the broadcast flag and the Grokster case. The other two articles are a story on how and why to build your own open source HDTV, and an interview with EFF legal director Cindy Cohn on her take on the impact of the Grokster case on open source.
Mad Penguin: Hi Wendy, what's your job at the EFF?
Wendy Seltzer: I'm an attorney and a special projects coordinator, helping to organize things like the Digital Television Liberation Front, helping people to build things like high-definition personal video recorders out of free software. These open source devices time-shift content and help you make fair use of HDTV content. Unfortunately, this is something that the broadcast flag could take away from us in the next few months, unless the courts agree with us in our challenge to the broadcast flag.
[Editor's note: a federal court struck down the broadcast flag on May 6, 2005, but now the copyright cartel is trying to sneak the broadcast flag into other legislation currently before Congress.]
MP: Isn't it going to result in the United States becoming a cultural island if the broadcast flag goes through?
WS: Well, it's going to mean that the public is cut off from the content that is coming out of studios and mega-broadcasters. Unfortunately, it's also something that the United States is trying to encourage its trading partners to adopt as well. So everyone will become cultural islands of big media, cut off from commentary from the general public.
MP: What's the broadcast flag going to do to the rip-mix-burn culture?
WS: It's going to change the way that we can comment on media. It's not going to stop the dedicate pirates. The people who are intent on stealing a copy of the latest television show and selling it are still going to be able to do that, but the people who want to make their own commentaries on the television show, or put themselves at the news desk of a famous show reading the news are going to have a hard time doing that. Those sorts of commentaries and parodies that are fair use are what's going to be hurt most by the broadcast flag.
MP: So you're about to head out to the Supreme Court in the Grokster case. Tell us about the case.
WS: The EFF is defending StreamCast Networks in the case of MGM versus Grokster. All of the major movie studios, record labels and many song writers sued two providers of file-sharing software claiming that Morpheus and Grokster were liable for all of the infringements that were committed by all of their users. We are defending them on the grounds that the software has plenty of non-infringing uses. In fact, it was designed for the sharing of files in the public domain, files that have been authorized for sharing, files whose authors have licensed them under Creative Commons licenses and encouraging sharing. This software is good for all of those fair and non-infringing uses. Under the principles established 20 years ago in what we know fondly as the “Betamax” case, technologies that are capable of substantial non-infringing uses aren't liable for bad ways they are used.
MP: What does liability mean?
WS: Copyright liability is pretty expensive. It can reach up to $150,000.00 per infringement. If you are found liable for a copyright infringement, you'd better look for a different business. But our clients are not in the business of copyright infringement, they're in the business of producing general purpose software, and they shouldn't be on the hook for what some of their users might do with that software.
The principles that we are fighting for here are that someone making general purpose software shouldn't have to fear that some of his or her users might misuse the product and commit infringement, and suddenly leave the software manufacturer on the hook for hundreds of thousands of dollars in copyright liability. Those technologists should be free to develop technologies that allow us to remix our media and it should be the infringers themselves, if anyone, who should be liable.
If anyone, it sure shouldn't be the technologists who are the choke points for the control that the industry seeks to exert here.
MP: The 1960's was a period incredible explosion of cultural expression. Do you think that the major media companies are trying to prevent a similar cultural explosion now?
WS: I think that the major media companies are trying to cement their control of media distribution and want to cut off competition in lots of forms. So while they say that they are aiming to cut of piracy of their works, I think it's no accident that are also striking out against technologies that can be used by anyone to create competing cultural products.
MP: Larry Lessig has recently been asking technologists to become politically active. What can technologists do with their skills to help the EFF in its support of these issues?
WS: Lots of things. They demonstrate the need for a law that is protective of innovation. They can keep innovating, keep developing, and show the Congress and the courts the range of fair, non-infringing activity that could be cut off by bad judgments. The EFF has developed an “endangered gizmos” list, which is a catalog of some of the technologies that are threatened by regulation. For example, the HDTV tuner card is threatened by the broadcast flag. And lots of general purpose technologies are threatened by the INDUCE Act: the iPod, the CD burner, the MP3 player, all sorts of technologies that wouldn't be developed in a different environment of the kind that Congress is currently considering to enact.
So technologists who can build these gadgets and help us to remember their importance, and help to educate Congress will be making very important contributions to the fight for greater innovation.
MP: So I'm here interviewing you here right now with an MP3 player by Memorex. Does that mean that the major media companies are trying to take my Memorex away?
WS: They probably won't be able to take your Memorex away, but they'll be able to take the incentive away from emerging technologists who want to develop to develop the next great device to compete with your MP3 player. After all, you advertise an MP3 recorder as great for producing perfect recordings, and the next thing you know, one of the big recording companies comes after you and says, “You're inducing people to put this MP3 recorder up in front of a speaker and make an analog-to-digital copy of our recordings.” If the INDUCE act were to pass, that kind of lawsuit could scare technologists out of developing the products; scare venture capitalists out of even trying to finance that kind of product; and we wouldn't see those kind of products getting out of the starting gates.
MP: So what about open formats like Ogg Vorbis. What kind of effect would lock-down laws like the INDUCE Act have on open formats like Ogg?
WS: It is possible that general purpose technologies that can be developed by their users for a wide variety of infringing and non-infringing purposes could be attacked by these kinds of laws on the grounds that they could be used for infringing or non-infringing purposes. If that kind of end-user deployments could get the manufacturers in trouble, then the manufacturers might be more likely to lock down the devices than to allow the users to develop in open formats.
MP: Getting back to the Grokster case, what do you think is going to happen in the Supreme Court?
WS: You can't predict the Supreme Court, but we won at the District Court, and we won at the Ninth Circuit, so I hope that winning streak continues.
MP: The Supreme Court is kind of a conservative court, compared to the Ninth Circuit, so are you a little nervous?
WS: The conservative position here should be “Don't regulate technology without good proof that regulation is needed and will have beneficial effect”, so I would say that our position should be attractive to a conservative court.
MP: And with the Betamax case, you have a lot of history and precedence on your side, right?
WS: Yep. We are arguing that, based on our reading of the Supreme Court's prior decisions, the logical and legally correct ruling is that these companies, our clients, Grokster and StreamCast Networks, are not liable for misuses of their software. We have a strong collection of “friend of the court” briefs on our side, so we are pretty confident that our position is the right way to go.
MP: Who are some of the groups that have sided with you?
WS: We've got everybody from the ACLU to the American Conservative Union. We've got the Consumer Electronic Association, Intel, a lot of ISPs, the Free Software Foundation, and a lot of law professors. I think 60 law professors signed onto one brief. We've got some emerging technology companies who are concerned that the kind of development that they do would be threatened by the wrong ruling here.
MP: Did the other side get any groups on their side?
WS: They got a lot of groups, too. If you had come by our office, you would have seen a table that was covered pretty thickly by briefs. There were probably about 25 “friends of the court” briefs on each side.
MP: What are some of the names on the opposite side?
WS: They've got Major League Baseball, the Commercial Association of Broadcasters, and so forth. It's very clearly big media on that side. They have some major song writers and artists, but so do we. Unfortunately, the Solicitor General of the United States weighed in on the other side.
