Cites & Insights: Crawford at Large
ISSN 1534-0937
Libraries · Policy · Technology · Media


Selection from Cites & Insights 5, Number 9: July/August 2005


©3 Perspective: Balancing Rights

MGM v. Grokster: A Question of Balance?

When I’ve discussed “the Grokster case” (formally MGM v. Grokster) before, most recently in C&I 5:5, it was in the context of what I call ©4: Locking down technology. Most commentary on peer-to-peer networking and legal actions has focused on Big Media’s apparent intent to hold technological development hostage—to prevent development and distribution of any technology that could be used to infringe.

Two odd things happened on June 27, 2005:

Ø    The Supreme Court reached a unanimous decision in MGM v. Grokster. Unanimous decisions aren’t that common, particularly in hotly contested cases.

Ø    That decision convinced me to look at MGM v. Grokster as part of ©3: Balancing rights, rather than ©4: Locking down technology. The justices crafted a decision that strikes a balance where I would not have thought one was feasible—and where some observers on one “side” or the other continue to exclude any middle.

The Supremes did a good (not perfect) job of balancing interests within a Constitutional framework. If you’re too busy to read further, my short take is the same as the far more informed Susan Crawford (who is a lawyer): “Today’s Grokster opinion is a victory for content and for technology.” That’s a good thing—even if the details may prove messy.

Oral Argument and Earlier Comments

The Electronic Frontier Foundation put together a new version of something Ed Felten did earlier at Freedom to tinker (in another context): “A Betamax-protected device every (week)day until March 29.” EFF’s assertion as to Big Media’s argument is, as usual, fairly extreme:

In MGM v. Grokster, Hollywood and the recording industry are asking for the power to sue out of existence any technology that appears to be a threat, even if it passes the Betamax test. That puts at risk any copying technology that Betamax currently protects as well as any new technologies Hollywood doesn’t like.

I haven’t read all of the briefs in the case; maybe Big Media actually made arguments that extreme. The profiles through March 22 (when I downloaded the page) included the Xerox machine, TCP/IP, weblogs, the VCR and email. While the profiles are interesting, I question the implicit suggestion that any or all of these technologies could or would be open to infringement lawsuits.

Doron Ben-Atar offered an interesting perspective in The Chronicle Review (part of the Chronicle of Higher Education) for April 1, 2005: “Hollywood profits v. technological progress.” Ben-Atar calls the pure Big Media attitude toward P2P sharing—“every pirated version…is a net loss of the retail price for the studios and also adds to America’s growing trade imbalance”—“disingenuous and shortsighted.” While commercial piracy is “both illegal and immoral,” there’s a case to be made that some forms of infringement fuel demand for entertainment products. Ben-Atar notes that 2004 may have seen lots of piracy but also saw record sales and rentals of DVD and VHS, nearly $26 billion worth. More to the point, “A decision in favor of the movie and music studios will neither halt piracy nor stop the development of P2P software”—although it would force such development offshore and reduce America’s innovative lead. The article ends with a paragraph that appears to preclude a middle ground:

Unable to go after actual violators of their intellectual property, the studios target P2P developers whose programs, among other things, facilitate some piracy. But it is impossible to contain the abuse of technology without undermining the free flow of knowledge that is the prerequisite for innovation. In order to prevent 12-year-olds from downloading their favorite movie, the plaintiffs and their allies in the Justice Department are threatening our most cherished economic assets—the public sphere of knowledge and the conditions of intellectual exchange. Shutting down software companies that develop file-sharing technologies will only push programming into other national jurisdictions. The United States can stay ahead of its competitors only by remaining the world’s leader in innovation and creative entrepreneurship. Protecting the culture of innovation and allowing P2P development to take place in the United States are in the true interest of the nation.

“But it is impossible…” excludes the middle. Is Ben-Atar right? I hope not. Only time will tell.

Notes on the Argument

Consider some analyses of the oral arguments, if only as a clue to what was going on—and an indicator of how well (or badly) observers could read this court.

Technology Daily, March 29, 2005: “The justices appeared concerned that the legal test proposed by the entertainment industry would chill the development of innovative technologies like Apple Computer’s iPod music player. But they did not appear copasetic with arguments made by the file-sharing companies that the justices should leave untouched the Supreme Court’s 1984 decision in Sony v. Universal City Studios.” The article goes on to say that the case is about “whether file-sharing companies should be held liable for the copyright infringement of their users.” The report identified questions about active inducement as being a key issue.

Timothy K. Armstrong (blogs.law.harvard.edu/ tka/) posted a “few notes” on the argument. “I would say the argument went a little better for Grokster than I would have expected it to.” Armstrong found MGM’s argument for looking at business models “a little odd,” but said this view would not directly undermine Sony (which never marketed Betamax as a tool for infringement). Armstrong notes the extremity of MGM’s view: “It does not matter…whether the infringing use of Grokster’s system constitutes 90% or 10% of the total: because its whole business plan is geared around using the promise of infringing content to lure customers, it should be liable.”

It’s interesting that MGM’s attorneys explicitly said “ripping one’s own CD and storing it in an iPod” is one of “many perfectly lawful uses” for the iPod, which should (but won’t) settle the extremist case that you should not be able to rip your own CDs for your own use. On the other hand, MGM’s model appears to call for a court trial in almost every case where a copyright-holder claims the developer or marketer of a technology deliberately induced infringement using that technology. Says Armstrong, “This is an extraordinarily low threshold they are asking the Court to establish for getting to a jury…” Supposedly, Theodor Olson suggested a quantifiable measure to determine a “safe harbor” against lawsuits: If a minority of demonstrated use is infringing, the defendant should be off the hook. How do you determine the proportions of actual use? Back to a trial, I guess.

The Supreme Court was impatient with Grokster’s reliance on one phrase out of a 13-page Sony decision—and several justices noted that Grokster seemed intentionally designed to circumvent the Napster decision. Armstrong also noted that the Justices were well briefed on the technological issues. Here’s Amstrong’s final comment:

None of the Justices was talking as if the case could be disposed of on Sony alone, but there will be at least a few votes against abandoning that standard altogether. Whether the Court can craft a marginal tweak of Sony that does as little harm as possible is a question nobody can answer now, but we will know in a couple of weeks.

“Harold” at Wetmachine (www.wetmachine.com) offered “Tales of the sausage factory: My day with the Supremes,” a combined commentary on Grokster and FCC v. Brand X Internet Services. Harold is a member of the Supreme Court bar and writes an interesting (if sometimes mean-spirited) commentary.

Harold says Don Virelli (for Big Media) began by asserting that Grokster’s software “has no legitimate uses,” which the judges found questionable and which Harold calls overselling the case. Judge Scalia asked about inventors and how they could proceed—and Virelli said “people don’t get sued just for inventing stuff,” to which Harold appends “while the entire bar section rolled its eyes.” He did note Court sympathy for the idea that Grokster deliberately built its business on illegal activity.

According to Harold’s byplay, Richard Taranto (for Grokster) may have been too extreme in his argument. He equated Grokster with Sony itself, “where Sony made most of its money from the sale of tapes for illegal archiving of shows”—a questionable analogy the Court wasn’t buying. He also argued that any non-infringing use should free companies from liability, the point at which Judge O’Conner asked why the Court needed to spend 13 pages on Sony “if our standard was so clear.” Here’s Harold’s bottom line, which says he knows his stuff:

I think the Court is likely to affirm the basic idea of Sony that you can’t sue a manufacturer or distributor of a technology for copyright infringement if the technology has non-infringing uses. But I also think they will remand and allow the RIAA to pursue a claim for “active inducement” to infringe based on Grokster’s conduct.

Oddly, Harold’s “bottom line” on the Brand X case, one he’s actually involved in, was dead wrong. Maybe it’s harder to read the signs when you’re too close to the action.

Finally, Alex Halderman, one of Ed Felten’s grad students, commented at Freedom to tinker (www.freedom-to-tinker.com) on April 1, 2005. His well-written, thoughtful notes cover some of the same ground reported already, and Halderman was as surprised as others to hear “several Justices” repeatedly asking about active inducement, “A standard barely mentioned in the main briefs from either side.” He notes that active inducement was mentioned in the U.S. Government amicus brief and in IEEE’s amicus brief—and that IEEE called for a much higher standard of proof for active inducement than that proposed in the INDUCE Act. IEEE would require “evidence that parties committed overt acts of encouragement, not merely that they failed to do all that they could to prevent illegal copying.” Notably, lawyers for MGM and the government both said “inducement would not be a sufficient remedy.” Halderman’s thought as to how the Supreme Court would rule (omitting portions of the long paragraph):

…I think it is plausible that the Court will craft a narrow active inducement test resembling the IEEE proposal… Such a test would be neutral with respect to technology… It would be responsive to the worries of technologists…yet it would also allow the courts to hold Grokster accountable because of its past encouragement of infringement… Perhaps the most attractive feature of an inducement test is that both the Government, which sided with the content industry, and the pro-technology IEEE support it in some form. This is the closest thing to a compromise that we have seen in the case. Neither Grokster nor MGM would be wholly satisfied with a narrow inducement test, but it could potentially cure the most imminent harms cited by the copyright owners while causing minimal collateral damage to innovation.

Not a bad prediction.

The Decision: No. 04-480

The question is under what circumstances the distributor of a product capable of both lawful and unlawful use is liable for acts of copyright infringement by third parties using the product. We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.

That’s the unanimous opinion (delivered by Justice Souter): the summary for a 13-page decision. The trap here is the definition of “other affirmative acts taken to foster infringement.” But that’s how copyright law tends to work: Rarely neat and subject to long-term refinement.

The commentary on P2P and its advantages is fairly sophisticated—and it’s clear that the Justices are wary of MGM’s claims as to the percentage of infringing use. But they don’t need to quantify: The defendants concede “users employ their software primarily to download copyrighted files.” For that matter, defendants “have responded with guidance” to users who send e-mail asking about playing copyrighted movies they’ve already downloaded.

Grokster and StreamCast are not…merely passive recipients of information about infringing use. The record is replete with evidence that from the moment Grokster and StreamCast began to distribute their free software, each one clearly voiced the objective that recipients use it to download copyrighted works, and each took active steps to encourage infringement.

Souter recounts some of the evidence and notes that the business models of both companies “confirm that their principal object was use of their software to download copyrighted works.”

MGM and others arguing against Grokster fault the lower court’s pro-Grokster decision “for upsetting a sound balance between the respective values of supporting creative pursuits through copyright protection and promoting innovation in new communication technologies by limiting the incidence of liability for copyright infringement.” While I get nervous whenever Big Media representatives talk about “balance,” Souter continues: “The more artistic protection is favored, the more technological innovation may be discouraged; the administration of copyright law is an exercise in managing the trade-off.”

After discussing Sony, pointing out that there was “no evidence that Sony had expressed an object of bringing about taping in violation of copyright,” Souter notes MGM’s desire for the Court to “quantify Sony”—preferably holding that any product used principally for infringement does not qualify for protection. While the Supreme Court agrees with MGM “that the Court of Appeals misapplied Sony,” it is not prepared to revisit or modify Sony—and doesn’t regard that as necessary. “It is enough to note that the Ninth Circuit’s judgment rested on an erroneous understanding of Sony and to leave further consideration of the Sony rule for a day when that may be required.”

Although Sony limits imputing culpable intent as a matter of law, “[N]othing in Sony requires courts to ignore evidence of intent if there is such evidence.” Working from “active inducement” in patent law, the Court shows how it may apply here—and, just as Sony brought the “staple article doctrine” from patent law into copyright law, the Court now carries over the inducement rule from patent law, as stated in the last sentence of the summary finding.

[M]ere knowledge of infringing potential or of actual infringing uses would not be enough here to subject a distributor to liability. Nor would ordinary acts incident to product distribution, such as offering customers technical support or product updates, support liability in themselves. The inducement rule, instead, premises liability on purposeful, culpable expression and conduct, and thus does nothing to compromise legitimate commerce or discourage innovation having a lawful promise.

Further analysis concludes that “The unlawful objective” of the defendants “is unmistakable” and that it is at least adequate to entitle MGM to go forward for claims for damages and equitable relief.

Justice Ginsburg filed a five-page concurring opinion, joined by the Chief Justice and Justice Kennedy. This opinion does hint at a desire to “quantify Sony,” albeit not in so many words.

If, on remand, the case is not resolved on summary judgment in favor of MGM based on Grokster and StreamCast actively inducing infringement, the Court of Appeals, I would emphasize, should reconsider, on a fuller record, its interpretation of Sony’s product distribution holding.

Ginsburg and friends would like to see Sony weakened on behalf of stronger protection for copyright holders. It would appear from a footnote that Ginsburg et al accept MGM’s continuous disputation of any noninfringing uses of P2P software!

Justice Breyer (joined by Stevens and O’Connor) filed a 10-page concurring opinion, largely in response to Ginsburg’s opinion.

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 noninfringing uses.

Breyer et al also see growing noninfringing uses for P2P software, including research information, public domain films, digital educational materials, digital photos, shareware and freeware, secure licensed works, and “all manner of free ‘open content’ works collected by Creative Commons.”

Breyer argues that the Sony standard should not be modified or interpreted more strictly (as he believes Ginsburg is calling for), and discusses the state of the Sony doctrine:

Sony’s rule is clear. That clarity allows those who develop new products that are capable of substantial noninfringing uses to know…that distribution of their product will not yield massive monetary liability…

Sony’s rule is strongly technology protecting. The rule deliberately makes it difficult for courts to find secondary liability where new technology is at issue…

Sony’s rule is forward looking. it does not confine its scope to a static snapshot of a product’s current uses…

Sony’s rule is mindful of the limitations facing judges where matters of technology are concerned….

[All emphasis in original.]

Breyer says a modified Sony rule would weaken protection of new technology and that gains to copyright holders would not outweigh the loss to technological innovation, particularly given the Constitutional bias toward encouraging innovation.

There’s more here, questioning any need to change Sony in order to protect copyright holders. Breyer concludes, “A strong demonstrated need for modifying Sony…has not yet been shown.” Which calls for the Ninth Circuit not to reconsider those aspects of its finding.

The concurring opinions reveal a three-to-three split on copyright issues; given that split, the subtlety of the unanimous opinion is remarkable.

Early Reactions

A June 27 posting by Fred von Lohmann at EFF’s Deep Links (www.eff.org/deeplinks/) shows EFF’s predictable response in its headline: “Supreme Court sows uncertainty.” The bullet points are more measured: It’s still not about P2P itself; the Court rejected the extreme positions of the entertainment industry; Sony remains intact; the Court did not buy into Big Media’s theory of ‘vicarious liability’; and the court “conjured a new form of indirect copyright liability, importing inducement from patent law.” Since Sony also imported a doctrine from patent to copyright law, it’s hard to read this too negatively. But von Lohmann does his damnedest: “Lawyers will be reading tea leaves here for years to come, trying to divine the precise boundaries of this new form of copyright liability… [T]he Court’s opinion may lead lower courts to conclude that once you find an overt act, however small, virtually everything else becomes relevant to divine your ‘intent.’”

Separately, EFF offers a six-page set of “Key quotes from the MGM v. Grokster Supreme Court decision.” Although it omits quotes from the Ginsburg opinion, it’s a good selection, worth reading on its own (www.eff.org/IP/P2P/MGM_v_Grokster/key_quotes.php).

Ernest Miller offered notes on an RIAA/MPAA press conference (at www.corante.com/importance/, also June 27). Despite the fact that Big Media utterly failed to narrow the Sony doctrine, the gist is that this was a “victory for the rule of law” and that “it can’t be right under law to build a business on the basis of taking someone’s property.” (Unless that business relies on eminent domain, but that’s a different Supreme Court decision…) Big Media apparently views this as a “terrific result.” Those speaking at the press conference also considered it “doubtful that this will be rushed back to Congress”—another positive outcome, given Congress’ predilection to kiss Big Media’s metaphysical posterior whenever possible.

As already noted, Susan Crawford’s immediate reaction is that the Supreme Court did offer “a balanced view” (that’s the heading on her blog entry). “I was afraid that Sony would be undermined—and it wasn’t. The content guys were afraid that they wouldn’t be able to go after bad guys—and they’ve been given ammunition. What we’ve got is an opinion that is balanced and middle-of-the-road.” She notes that the decision “says strongly that you can’t impute intent to technology” and calls it “a good day for innovation.” After noting that, yes, some companies who have presumed too much from Sony (blatantly encouraging infringement) might face litigation, she says: “[F]or the moment, tech companies can breathe easy. Distribution of a general-purpose copying device, by itself, is simply not an infringing act. And that was the right decision.”

Edward Felten picked at the decision and likely next steps in several posts at Freedom to tinker. He argues that any business model for a software company will show an increase in revenue from an increase in use—but that’s a far cry from explicitly encouraging infringement. He says the “scariest” part of the opinion is “the discussion of product design decisions,” which comes down to the possibility that product design decisions might enter into a finding of contributory infringement if there is other evidence of bad intent. He’s right, of course—but it’s important to take into account the whole of his final paragraph:

Legitimate technologists will still worry that a well-funded plaintiff can cook up a stew of product design second-guessing, business model second-guessing, and occasional failures of copyright compliance by low-level employees, into an active inducement case. This risk existed before, and the Court today hasn’t done much to reduce it. [Emphasis added.]

The risk did exist before. The opinion seems pretty clear about the need for obvious intent to encourage infringement. Based on what’s available of the evidence, Grokster and StreamCast were truly awful test cases for the pro-Sony side: Their encouragement of infringement seems clear. Indeed, another post begins, “Few tears will be shed if Grokster and StreamCast are driven out of business as a result of the Supreme Court’s decision. The companies are far from lovable, and their technology is yesterday’s news anyway.” He thinks that BitTorrent may be the litmus test: It was created to support noninfringing sharing and the creator has “said all the right things”—at least most of the time. Felten says flatly, “The music and movie industries don’t want to live in a world where BitTorrent is allowed to exist.” He predicts that Big Media will push for Congressional codification if they can’t achieve their goals through litigation.

He also cites a joint weblog by Richard Posner and Gary Becker. That blog doesn’t want to be printed out, so I guess they don’t want to be quoted thoughtfully. If Felten’s quoting each of the two appropriately (which I believe he is, given his fair-minded track record), I’m bemused in both cases. Posner pushes the idea of “nonremovable electronic tags”—that is, digital watermarks—as a way of providing safe harbors. But, as Felten points out, “[n]obody knows how to create the indelible marks he asks for, and in any case the system he suggests is easily defeated.” Becker, who Felten calls “right on the mark,” is unhappy at the thought of courts deciding which fraction of usage needs to be legitimate in order for a technology to be sheltered—but that wasn’t the way I read the Grokster decision. (I’m not a lawyer, to be sure.) There was no suggestion that X% non-infringing usage (say 35%) would imply secondary liability, while 2X% (say 70%) would put the inventor or distributor in the clear. Instead, Grokster calls for a different kind of test: The express actions of the company to encourage infringement. That may be a troublesome test in its own right, but it’s certainly not a percentage test—although I wouldn’t be surprised if some aggressive copyright holders tried to sue on that basis.

Seth Finkelstein contributed unusual items at Infothought, including a great quote taken from the opinion, headed “being careful what you wish for”:

StreamCast even planned to flaunt the illegal uses of its software; when it launched the OpenNap network, the chief technology officer of the company averred that “[t]he goal is to get in trouble with the law and get sued. It’s the best way to get in the new[s].”

As Finkelstein notes, “He sure got his wish!” In another post, “Grokster aftermath,” Finkelstein concludes that even a Supreme Court of Solomons would be unable to easily resolve the filesharing conflicts in a single case.

ALA’s press release on Grokster is upbeat: “Supreme Court clarifies Sony decision, fair use preserved.” It calls the ruling “a victory for libraries and consumers” and says the Court “upheld the principle of fair use in the digital age.” ALA had offered an amicus brief (with ACLU, the Internet Archive, and Project Gutenberg) urging the court to consider the usefulness of P2P activities in education and libraries, and the release notes Breyer’s agreement “that there are substantial non-infringing uses of peer-to-peer technologies.” The Library Copyright Alliance (ALA, ARL, MLA, AALL, and SLA) also issued a statement “welcom[ing] this balanced decision.”

Siva Vaidhyanathan, unsurprisingly, was unhappy: “Overall, Monday’s Grokster ruling is a middle-ground decision about a territory that has no middle ground. [Emphasis added.] Souter and the court have issued a Solomon-like decision that will do no good for the plaintiffs, do no harm to infringers—and could have profoundly negative effects on future innovators of technology.” Vaidhyanathan excludes the middle and denies the possibility of balance, then goes on to assume a worst-case supposition: “It’s not at all clear that the next big case won’t completely undermine the Sony decision and retard innovation, investment and risk-taking.” What is clear is that the court said repeatedly that Sony stood; I wonder what would have satisfied Vaidhyanathan?

Moving into July, EFF’s von Lohmann continues to see every possible chilling effect, and maybe it’s EFF’s proper role to be an extreme voice on one side. This would be more convincing if EFF hadn’t undercut itself through promotions that appeared to justify infringement on an “everyone’s doing it” basis: In fact, 60 million file-sharers can be wrong, unethical, and illegal. A July 6, 2005 Deep links post, “First post-Grokster cold front?” raises this question regarding companies that enable place-shifting:

Because these companies forthrightly promote activities that should qualify as fair uses, but have generally never been ruled on by a court, they are put in a potentially difficult position—if they lose on fair use, are they automatically liable for inducement?

He cites grumbling about Slingbox from MPAA and CBS as examples. He’s right: There is a potential concern and Big Media doesn’t usually concern itself much with Fair Use (sometimes denying that there is such a law). Here’s the extreme “chilling effect” summary—worth paying attention to, but an assertion of possibilities, not certainties, and with an odd suggestion that Grokster reverses the rule of American jurisprudence that plaintiffs must prove their cases:

Prior to the MGM v. Grokster ruling, these companies needed only to prove that any substantial use of their product is noninfringing. Today, they may be called upon to prove that every use that they ever promoted or advertised is noninfringing. Now there may be other defenses: courts should recognize that a good-faith belief that a use is noninfringing bars an inducement claim. But overall, this is one way MGM v. Grokster makes the climate chillier for innovators.

Christine Peterson saw the decision as a balancing act in a July 6 post at Library technology in Texas (libtechtx.blogspot.com), “Supreme Court and peer-to-peer.” Her take, in part:

This decision has solidified a tenet that we, as librarians, have always known. Copyright infringement, in whatever guise, is illegal… Although this decision is interesting in itself, what I found more interesting were the headlines in the media. They all seem to think that peer-to-peer is dead. Development of new technologies will be slowed, current technologies may be illegal (iPods, instant messaging, Internet). The sky is falling! However, if you read the actual decision, you see that it is the intent behind the technology that is important. iPods, instant messaging and the Internet are not “marketed” for illegal use…

While this is true, and while I echo Peterson’s closing comment, “Read the Supreme Court decisions yourselves!” when the headlines seem overwrought, it’s nonetheless true that increased threat of infringement actions that aren’t readily dismissable will slow development. But many things slow development for perfectly good reasons. You can’t dismiss the slowing effect, but it may be justified.

My take

American law has an unfortunate legal fiction: That corporations are people. They can’t be jailed, to be sure, but they still have the rights of people—including free speech. That right is limited in the case of corporations, and I believe the Grokster finding adds to the limitation. I’m not sure that’s a bad thing.

I believe a handgun company that advertises its products as “Perfect for taking out your old lady” and bases its business model on an increased rate of homicide should be liable, regardless of the Second Amendment. (That’s a hypothetical case!)

I believe a crowbar company that publicly points out that its products can jimmy a front door faster than competing models should be open to suits for encouraging breaking and entering, even though crowbars are and should be legal.

I believe distilleries, wineries and breweries that advertise the virtues of their product for getting hammered and enjoying driving drunk should and probably would be liable for damages.

Peer-to-peer software should be legal. Nothing in the Grokster decision makes the software illegal.

Active corporate encouragement of copyright infringement, as the primary or only business model for distributing peer-to-peer software, is not innovation. It’s encouraging people to break the law.

Grokster will pose difficulties in some cases—but, you know, people pursuing technological innovation ought not to be doing so with the avowed primary intent of breaking the law.

I find more to like in the Grokster decision than to fear from it. I believe it finds a reasonably sound balance among sharply conflicting motives. Perfect? Probably not—but what would be?

A few closing words about piracy

The International Federation of the Phonographic Industry, IFPI, issued a 20-page report, The recording industry 2005 commercial piracy report. You should be able to find it easily enough; start at www.ifpi.org. I find some recommendations alarming (new legislation for the internet, licensing and regulation of optical disc pressing facilities), but it’s an interesting read—and it’s almost entirely about real piracy.

Commercial piracy. The production of “fake recordings” for sale, in competition with legitimate commercial recordings.

If you believe IFPI’s figures, there are 31 countries in which fake recordings outsell legitimate ones. The report says 85% of discs in China are pirate editions, 80% in Indonesia, 66% in Russia—and 99% in Paraguay, most shipped out to neighboring countries.

That’s piracy. It’s a huge problem internationally (and a relatively minor one in Canada and the U.S., as the report indicates). Quite a few pirates have been shut down; many more remain.

I don’t condone copyright infringement—but I think it’s crucial to distinguish between casual file-sharing and commercial piracy. Making such distinctions is part of finding a balance.

Cites & Insights: Crawford at Large, Volume 5, Number 9, Whole Issue 65, ISSN 1534-0937, a journal of libraries, policy, technology and media, is written and produced by Walt Crawford, a senior analyst at RLG.

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