Joshua Karstendick: June 2005

A whole lotta jurisprudence going on

I've wanted to write this post all week, and since I leave for Florida tonight, I better get cracking.

On Monday, the Supreme Court handed down its decision in MGM v. Grokster, finding unanimously for the movie and record industries and against P2P companies Grokster and StreamCast.

Many in cyberspace view this as a bad idea, most notably Wired, SlashDot and the Electronic Frontier Foundation. I feel that many are doing so unfairly without even having read the opinions. I'm sure you can guess who around here has. Well, after having done so, I hope now to explain the Court's ruling a bit in order to demonstrate that it is not, I repeat not, the end of the world.

First, it's important to keep in mind that the Court understands the facts of the case fully. They grok P2P networks and their decentralized nature and how Grokster and StreamCast substantially differ from Napster. If you don't believe me, go read the first few pages of the majority opinion. That's right: Justice Souter took eight pages just to fully lay out the facts of the case.

Second, one should know that the Court recognized a threat to technological innovation and considered this while making their judgement. Their concern for progress can be easily seen during oral arguments. For example, Justice Breyer asked petitioner, "Are you sure, if you were the counsel to the creator of the VCR, that you could recommend, given the use, copying movies, that we should ever have a VCR? Are you sure that you could recommend to the iPod inventor that he could go ahead and have an iPod, or, for that matter, Gutenberg, the press? I mean, you see the problem."

Most of all, though, it's important to recognize that this case wasn't about peer-to-peer networks. Justice Ginsberg made that clear in her concurring opinion, "Further, the District Court and the Court of Appeals did not sharply distinguish between uses of Grokster's and StreamCast's software products (which this case is about) and uses of peer-to-peer technology generally (which this case is not about)."

Grokster isn't even about Sony, the so-called Betamax case that has the been the standard for this sort of case for the last 20 years. As Justice said, "When measured against Sony's underlying evidence and analysis, the evidence now before us shows that Grokster passes Sony's test that is, whether the company's product is capable of substantial or commercially significant noninfringing uses."

At this point, you may well be wondering what this case is about and what Grokster and StreamCast did for which the Court found them at fault. The answer, in a word, is inducement. Merriam-Webster's Dictionary of Law defines inducement as "A significant offer or act that promises or encourages."

Basically, the Court found them at fault for encouraging copyright infringement. The evidence that led them to this conclusion was not the fact that Grokster and StreamCast merely provided P2P software. It wasn't even based solely on the fact that they did nothing to stop copyright infringement. A good deal of the majority opinion focuses on their encouragement of infringement through advertising and software features. For example, one feature listed a top ten list of downloaded songs, which were inevitably copyrighted. Both companies tried to market their software as the replacement for Napster.

The lesson learned here and the precedent set isn't that creating technology capable of illegal purposes is wrong. That was decided back in Sony, and the Court showed no interest in revisiting it presently. The lesson set here is that encouraging illegal actions through marketing and other means is wrong. Do any among us reasonably disagree with that assertion? Really, this is hardly even a precedent, as it's been already accepted in patent law.

Just don't encourage others to break the law, and you should be able to invent away in Sony's safe harbor. Because of the Court's decision in Grokster, BitTorrent and its creator, Bram Cohen, seem safe. Not only does it have substantial non-infringing uses, but it does not through features or marketing induce copyright infringement. As Mr. Cohen says, "To me, it's all bits."

Since I'll be gone for almost a week, I should probably share this now, before any of the Supreme Court justices announce their retirement — if anyone even does, that is. There's a post on the blog of the American Constitutional Society explaining how A right turn on the high court could lie ahead, as many important decisions are only 5-4. The recent battle in the senate over a couple of Bush's judicial nominees might have seemed trivial, but the selection and confirmation of the next Supreme Court justice may truly change the Court and therefore American constitutional jurisprudence as we know it.

In happier news, Spain just approved homosexual marriage, and a similar bill is headed to the Canadian sentate where it is expected to pass easily. The times, they are a-changing, and it warms my heart to know that that means equal rights for some people around the globe. I look forward to the day when all Americans are assured the right to marriage.

Also in happy news, I have discovered my Jedi name.

Cast off your old name!

Your Jedi name is KARJO COLEB!

Find your Jedi Name!

And finally, your moment of Zen: the Interstate Commerce Blues.

and Hobbes is rolling in his grave, too

I feel a great disturbance in the Force. As if the Framers' voices suddenly cried out in terror, and then, suddenly, silence.

The Supreme Court ruled today in Kelo v. New London that you have no property rights.

A divided Supreme Court ruled Thursday that local governments may seize people's homes and businesses against their will for private development in a decision anxiously awaited in communities where economic growth often is at war with individual property rights.
— NY Times.

Links to the opinions and oral arguments are on How Appealing, and there's also a good post about it on Crime & Federalism.

After this decision, the only thing between a homeowner and his land is the legislative branch. Kelo means that if your city counsel wants to take away your land to give it to private developers, that's their prerogative.

I'm usually not a big proponent of property rights, but for chrissake, at least I recognize a right to property, unlike the majority of the Court. This is absolutely absurd.

Joe Blow Programmer, Esq.

These were among the two most interesting things I read today: What Became of Federalism?, Legal Theory Lexicon: The Counter-Majoritarian Difficulty.

Consitutional law really interests me. And I don't just mean the big issues like due process and free speech (although it is worth noting that the case regarding journalists' use of confidential sources if up for review tomorrow by the Supreme Court). Today, I read up on San Remo v. San Francisco, a case on land use recently decided by the Supreme Court.

Land use interests me! I've been thinking lately I should be a lawyer. Would you trust me to represent you.

Oh, and go read those linked pages. They contain important issues that all citizens ought to consider. If we don't, power-hungry federal officials will. Remember that.

a little nerdier every day

You just have to be difficult, don't you? — Guy at work, after I typed in the whole URL for a Google search page, www.google.com/search?q=curses+development+kit. Mozilla doesn't have the Google search bar like Firefox, and I didn't feel like going through more screens than I had to. I'm sure you understand.

And now, your moment of Zen …

Poets have been mysteriously silent on the subject of cheese.
— G. K. Chesterton, English author (1874 – 1936)

it's cackling time again

Bush's Support on Major Issues Tumbles in Poll — NYTimes.

President Bush's approval rating is in the low forties; Congress's is in the low thirties. A mere 19% feel Congress shares their priorities, and now a majority of Americans believe that the war in Iraq was a bad idea. Moreover, 45 percent said the more they heard about the Bush plan, the less they liked it.

The Democrats have now got a great opportunity in the midterm elections. They better not squander it.

Oh, and did I mention? Mwah ha ha!

alive

Boy, was my commute home today fun. Just before my train reached Center City, it stopped. The lights dimmed, and the train coasted eerily to a stop. Then, it sat there. It sat there just a mile or two from my place.

When finally it resumed, it slowly took us into the Market East station, to the platform's edge. There was another train stopped ahead of us. For the first time, a SEPTA employee explained that the power was out, so it'd be best that we all just get out at this station and maybe catch the subway.

I tried to make the best of the situation. The Gallery at Market East is a huge mall, so I spent some time there. I bought some cool new shades (after someone broke my glasses with the nifty transition lenses). I also grabbed a bite to eat. The bar there had a special for a cheesesteak, fries and cole slaw for just $4.95. Not only that, but it was actually a very nice place to dine: There were TVs everywhere, everyone was in a good mood, no kids bouncing around, and excellent service.

After dinner, I made my way to the subway, to where the problems of the regional rails had come. Just standing there waiting for the next train, the platform was packed with disgruntled passengers in the rank, humid underground station. And the situation did not improve once stuck in a subway car with all those people. Everyone was up against everyone else, unintentionally slapping and shoving each other.

Then we came to the 15th St. stop where even more people came aboard, probably many from Suburban Station. That was the third time the tall guy next to me bopped me on the head with his elbow. I was overjoyed by the time I made my escape at my stop. I ran up the stairs out of the station and then reveled a moment in the fresh, open air.

How the heck do you just lose power to the entire SEPTA regional rail system? Did they misplace the power? Or did someone just forget the electric bill?

My money's on a squirrel.

and now, your moment of Zen

Constitutional rights should not be limited by genitalia or the ability to engage in a particular form of sexual intimacy.

From the dissent in a recent N.J. decision barring homosexual couples from marrying: link. I strongly suggest reading it. Next, the NJ Supreme Court will hear this case, and it seems certain that this case or one like it will be before the U.S. Supreme Court very soon. The dissent makes a multitude of good points, such as the one above which made me laugh.

confusion

I've never felt like this before. I've never known someone who's died, I mean, not someone who was young and attractive and funny and had a great voice.

It's hard to fathom I'll never see her again. I mean, we weren't close, but I always figured I'd run into her again, maybe at the Jigger Shop or Friendly's where we'd ask each other how college is going or at church where I'd hear her sing.

Not just gone. I never figured she'd be gone.

kiss me, i'm a nerd

"A nerd is an excellent provider and a guy who puts you first," says E. Jean Carroll, Elle magazine's love and sex advice columnist. "He'll turn out to be a great father and a great husband."
And, she insists that a woman who is willing to stick it out with a nerd and get past his quirks will be handsomely rewarded. "Don't give up on him too fast," she said. "If you stick with him, he's going to turn out to be really great."

— NY Daily News.

I've been trying to tell that to girls for years. Little did I know the answer would come from a columnist for Elle.

Author Max Barry, writer of Jennifer Government and Syrup, has a great post on his blog explaining how ridiculous copyrights have become. It's definitely worth a read — especially if you never quite understood what I have against United States copyright law.

I am not looking forward to this Sunday. In Drexel's infinite wisdom, they have decreed that I am to move this Sunday from my room on the sixth floor to a room on the bottom floor — of the same building. I don't like moving, and I especially dislike how much I've had to do it.