“In truth, literature, in science and in art, there are, and can be, few, if any things, which in an abstract sense are strictly new and original throughout. Every book in literature, science, and art borrows, and must necessarily borrow, and use much which was well known and used before.”
– Supreme Court Justice David Souter
For many years, the copyright law of note has remained the so-called “fair use” clause of the all-encompassing 1976 act. Its original intent pertained to written and other works of academia. In more recent times, however, its sphere of influence has expanded into music. Artists “sampling” a lyric or a phrase- or even entire sections of works- are then legally reviewed under the following criteria:
does it comment on the original work? (by expanding the artist’s meaning)
does it criticize the original work? (by revaling inherent flaws in perhaps logic and/or overall meaning)
Supreme Court Justice David Souter has rather poetically expressed his viewpoint on “original” art. ‘It all borrows on that which has gone before,’ Souter said, effectually paraphrasing King Solomon (“There is nothing new under the sun.”) But facilitator methods- methods that assist in forms of piracy and infringement- are indeed very new.
In June of this year, Justice Souter delivered the unanimous opinion of the court in the landmark file sharing case “MGM v. Grokster.” Grokster was one of many companies that disseminated free software meant to assist users in file sharing across P2P networks. According to U.S Supreme Court multimedia website Oyez, the software companies knew users were utilizing the software to download copyrighted materials. Though this leap in logic seems probable, it does appear outside the scope of the court – of any court, really – to legislate matters of thought. However, for any technology pirate who is sued by a corporation in the future, it could serve as a stunning defense strategy. At the very least, it’s the newest incarnation of an age-old legal trick- the ‘deflect the blame’ game.
To expand briefly: rather than prosecute those who use the software maliciously, the U.S legal system is prosecuting inventors and producers in much the same fashion that courts are beginning to say to gun manufacturers “Yes, guns can be used only for hunting or other conditionally legal endeavors, but people still get killed some of the time. That makes you wrong.” And people say copyright laws are a kick in the pants to innovation- yet, legislators are beginning to write legalities into existence that say any innovators must fully envision the scope of the future, as well as how their creations could potentially be used!
In the Grokster ruling, the Court reversed two lower court decisions that found for the software maker. Souter and the other justices argued that inferring into the intent of the 1976 Copyright Act was fully within their rights- the earlier legislation had made no mention of parties being liable in the instance of infringement by another. So called “secondary liability” doctrines were called into play. Because of the immense popularity of Grokster’s software, it would have been too costly and too time consuming for the courts to prosecute actual criminals. Grokster was found liable for profiting from copyright infringement perpetrated by others.
====How perceptive of you!=====
“…America’s laws regarding artists continue to reflect our national attitude toward artists: These are weird, potentially dangerous people who often care less about money than is acceptable. That’s true whether you’re a painter, writer, cartoonist, songwriter, director, dancer, or anyone else who’s trying to create something you want other people to see or hear. Business is our national art form, and business is deeply suspicious of art. So is our court system.”
– Nancy Updike
Many might view Grokster’s actions in a post-Napster world as asking for trouble. But 2 out of 3 courts agreed with the software manufacturer. Therefore, it is not unrealistic to assume the contradictions running rampant through the technology sector are due to a disjointed perception of software and the online world. There is no structure and because of that, a “see how far you can get” mentality exists. Bill Gates, however, is about to change that with an Internet face lift – one that inherently brands the World Wide Web with Microsoft’s goliath handprint.
Said handprint will be step one in eliminating the anonymity of the ‘net (perhaps the prevailing misperception people have when committing crimes online). Eleven months ago, the Motion Picture Association of America (MPAA) announced plans to prosecute those who download pirated versions of movies onto their hard drives. They cited user’s perceived anonymity as their greatest asset in the new initiative. In May, the MPAA was overjoyed at a crackdown on the BitTorrent network- a website that had been disseminating Star Wars, Revenge of the Sith. John C. Richter, Asst. Attorney General, hailed the arrests, saying they “[sent] a clear and unmistakable message” that internet pirates “cannot hide behind new technology.”
Only a month before these arrests, President Bush signed into law The Family Entertainment and Copyright Act; essentially, song and film pirates who place their wares on the ‘net for download may face up to three years in jail- in addition to hefty fines. Interestingly, the new bill targets only those file-sharers who swap unreleased items.
==Isn’t it Ironic?==
The act also allows parents to “edit out” sex, violence and bad language from DVDs. Furthermore, it protects companies that provide filters to skip entire portions of films. Manufacturers and producers had objected, saying that any such alterations infringed on their copyrights. However, the law has exempted these companies from facing prosecution [BBC news].