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In a masterfully well-written decision that shows a keen understanding of the underlying technologies, Federal District Court Judge Stephen V. Wilson ruled on Friday that the file-sharing software distributed by StreamCast and Grokster was legal. Specifically he found them not guilty of contributory copyright infringement and vicarious copyright infringement. First, what’s the difference?

From Judge Wilson’s Decision:

Contributory copyright infringement “stems from the notion that one who directly contributes to another’s infringement should be held accountable.” … Traditionally, one is liable for contributory infringement if with knowledge of the infringing activity, (he or she) induces, causes or materially contributes to the infringing conduct of another….

Vicarious copyright infringement extends liability for copyright infringement to cases in which a defendant “has a right and ability to supervise the infringing activity and also has a direct financial interest in such activities. There are two elements required for vicarious infringement: (1) financial benefit, and (2) the defendant’s right and ability to supervise the infringing conduct.”

On the issue of contributory infringement, the judge said,

The critical question is whether Grokster and StreamCast do anything, aside from distributing software , to actively facilitate – or whether they could do anything to stop – their users infringing activity.

Judge Wilson found that Grokster could not stop their users activity for several reasons. An interesting one is that they license their P2P software from Kazaa and are not the authors of Kazaa’s proprietary software. As a result,

Grokster does not have access to the source code for the application, and cannot alter it in any way. … When users search for and initiate transfers of files using the Grokster client, they do so without any information being transmitted to or through any computers owned or controlled by Grokster.

So, in a coup for free-software-loving file-sharers, proprietary software did some good here! But, when Judge Wilson turns to StreamCast’s Morpheus software he says,

StreamCast, unlike Grokster, has access to the source code for its software, and can modify the software at will. …Morpheus is based on the open-source Gnutella peer-to-peer platform and does not employ a proprietary protocol…

Judge Wilson doesn’t put it like this, but he sees a dilemma for StreamCast: First, if StreamCast changed their open-source software to try to control their users, nothing would force users to “upgrade” who could simply carry on with current versions. Secondly, since StreamCast uses software licensed under the GPL, they must distribute the source code with their Gnutella-based P2P client. But then, if users have access to the source code, the amount of time it would take hackers to undo any modifications StreamCast introduced and to re-release a non-crippled version on the internet would be measured in minutes. He says,

Neither Grokster nor StreamCast provides the “site and facilities” for direct infringement. Neither StreamCast nor Grokster facilitates the exchange of files between users in the way Napster did. Users connect to the respective networks, select which files to share, send and receive searches, and download files, all with no material involvement of Defendants. If either Defendant closed their doors and deactivated all computers within their control, users of their products could continue sharing files with little or no interruption.

The really interesting point that I haven’t seen people getting is the implications this ruling has for Kazaa. 1) Kazaa controls the proprietary software that Grokster uses. Hence, Kazaa could modify their software to try to prevent copyright infringement. (Update 4/30: I see now that I should have read further, because the amazing Matt gets it.) 2) Kazaa apparently operates “super-nodes” that I get the impression this Judge might consider sufficient to constitute “material involvement” in the copyright infringement of users. (Update 4/30: While I still get this impression from the decision, Derek at A Copyfighter’s Musings has convinced me that if running a supernode constitutes contributory infringement, then we’re on the slippery slope to merely connecting to the network constituting contributory infringement. This then is a reductio of the view.) And this judge’s opinion matters because he will likely end up ruling on Kazaa’s future. He’s the one who said the RIAA can sue Kazaa in a U.S. court despite Kazaa’s bizarre bases of operation. Judge Wilson’s summary may show Kazaa a path to continued operations though:

Defendants distribute and support software, the users of which can and do choose to employ it for both lawful and unlawful ends. Grokster and StreamCast are not significantly different from companies that sell home video recorders or copy machines, both of which can be and are used to infringe copyrights. While Defendants, like Sony or Xerox, may know that their products will be used illegally by some (or even many) users, and may provide support services and refinements that indirectly support such use, liability for contributory infringement does not lie “merely because peer-to-peer file-sharing technology may be used to infringe plaintiffs’ copyrights. “

The choice for Kazaa seems simple: Stop operating super-nodes by switching to a true P2P Gnutella-based (open-source) software. Then you’ll be like Xerox: You’re providing a product that users can choose to use for legal or illegal purposes, without yourself contributing to or being able to stop their illegal activity.

The U.S. government will not give Zacarias Moussaoui, who is charged in the 9/11 attacks, access to individuals that could prove his innocence. “The judge in the case, Leonie Brinkema, ruled in January that Mr Binalshibh, who is being detained at a secret location overseas, could be questioned through closed-circuit video transmission.” The US rejected that reasonable compromise.

Earlier this month, Ms Brinkema said she was disturbed by the “shroud of secrecy” which was being drawn around the case of Mr Moussaoui.

She said that so many of the case’s documents had been classified as secret that she agreed with Mr Moussaoui’s scepticism about whether he could receive a fair trial in open court.

The authorities have indicated the hearings could be moved to a military tribunal where greater secrecy is allowed.

I guess the attitude of the US government now is, “Listen judge, if you don’t let us win, then we’ll just take our prisoner to our own secret court where we know we can win!” That’s justice in America today. Read the rest of the BBC News article.

Dan Bricklin, best known as a co-creator of VisiCalc, the first electronic spreadsheet, has posted a great essay entitled How will the Artists Get Paid?. Bricklin looks at the issue from a historical perspective and is optimistic that new technologies do not doom creative people to a penniless existence. Here’s a little taste:

In computers, we’ve seen that fluid, general purpose programs like word processors and spreadsheets have usually prevailed over the more structured systems. People do with them what they want, not what the creator envisioned. (I can tell you that first hand with the spreadsheet…) DRM systems we hear about are based on a particular model of use, with an aim for absolute control to that model.

With art, which is usually used or experienced by others for their own purposes, there must be generality and lack of control to let others do what they want with it. An ecosystem with many ways for unintended free-release is a requirement. Therefore, an ecosystem which looks to a mixture of the traditional amateur, performance, patronage, and commission forms of payment is a requirement. Depending upon rigid enforcement of performance payments will disrupt the balance.

Listening to representatives from the recording and movie industries, you would think that selling fixed artifacts is the only way that artists can get paid. That has never been the case, and should not be in the future or else society and art itself will suffer. Those publishing businesses may be based on that one form of payment, but the artists’ livelihood need not.

Glenn Kessler and Dana Priest, of the Washington Post, are reporting that the US is growing worried as Iraqi Shiites gain clout. State department officials are admitting that they were just focused on removing Saddam Hussein, and had not given careful enough thought to what would replace him. Now, as the Shiite majority is demonstrating that it is highly organized (without telephones, TV, radio, or power they were able to stage an enormous pilgrimage to Karbala) US officials fear that the Shiite majority will seek to install an Islamic fundamentalist government. Well, the administration has been saying that the Iraqi people will get a government of their choosing. Now what will the US do when it turns out that Iraqis want a government worse (so far as US interests are concerned) than the one they had? Oops! Can we back up to March and listen to those who suggested this war could increase the likelihood of terrorism, not decrease it? Doh!

The story is just breaking today, but US officials have admitted that they are holding around 6 children (under age 16) as prisoners in Guantanamo Bay, Cuba. Given that most of these detainees were taken prisoner two years ago, this would mean that, when captured, the juveniles were even younger than they are now! Let us say again, in unison: The Federal Government Has Gone Stark Raving Mad. You can read the story all these additional places: Annova story, Guardian story, Winnipeg Sun story, Kansas City Star story, CNN Europe story, ABC Online Australia story, San Francisco Chronicle story, Edmonton Sun story, Edinburgh Evening News story, and a Tuscaloosa News story. Keep track of more stories as they develop with this Google News search.

Readers may recall a Slashdot interview with Siva Vaidhyanathan, Professor at NYU, and author of Copyrights and Copywrongs. Vaidhyanathan is working on a new book, The Anarchist in the Library, and was interviewed on the blog, Eyeteeth. This is a brilliant and amazing interview where Vaidhyanathan discusses how creative communities share, the DMCA, the American industrial production of culture, the USA Patriot Act, the importance of libraries and librarians, and the policies of the FCC. It is a must-read for those who care about the future of creative and democratic culture. (Thanks to BoingBoing for the pointer.)

Update 4/24: This was a Slashdot submission of mine and was accepted as part of Slashback. (Third bolded item from the top.)

A Washington Post article describes how the city council of Arcata, CA has passed a law making it illegal for the top nine managers of the city to comply with a request for information under the USA Patriot Act. The small town’s 16,000 residents favor this form of non-violent disobedience to a Federal Government that they believe has “gone stark raving mad”. That was the platform on which the most recently elected city council member ran on and won. Arcata is just one of 89 city councils that have passed such a resolution. You should contact your local officials too. (I contacted mine!) Perhaps enough local action will finally wake up our federal representatives.

Suppose a stalker wants to know where you live. The stalker can easily be a copyright holder by, for instance, publishing anything on the web. (Since anyone who fixes anything original in tangible form has a copyright on it.) Then the stalker just needs your e-mail address or your IP address. He gives that information to a court clerk (not a judge) falsely alleging that you were illegaly distributing his copyrighted works. The court clerk can then compel your Internet Service Provider (ISP) to provide the stalker with your address. What zany law makes all this possible? That’s right: The Digital Millenium Copyright Act (DMCA).

Of course, The EFF has been fighting for your rights here, but you also have what may seem an unlikely ally: Verizon Communications. They’re a big ISP and they see all these requests from copyright-holders greatly increasing their costs. Guess who that cost is going to be passed on to? That’s right. Once again, the end-user gets shafted.

Unfortunately a judge ruled in favor of the constitutionality of the DMCA so the only way we’re going to fix this is with new legislation. Write your representative and tell them to re-think the DMCA and this time to remember the end-user.

Patriot Act Signs For Your Library from librarian.net are chilling, funny, and unfortunately necessary to raise awareness about the absurd and unconstitutional USA Patriot Act and how it invades your privacy. I love librarians. They get it. (Link from Education Librarian).

Here’s the point: New technologies can enable a breakthrough in the reach of information. Example: the printing press. Prior to Gutenberg’s printing press, the average person simply had no access to books or to the accumulated knowledge of the world. By creating a technology that made distribution of that information faster and cheaper an enormous benefit accrued to the public. Information was within the reach of the average person because we got cheap books, public libraries, etc. We also created new businesses such as the publishing industry, the printing press manufacturing industry, the printing press repair industry, etc. This creates jobs such as “printing press operator’ which also benefits the public. Old industries and jobs fade away or transform themselves though, as the need for hand-copiers of books diminishes. Those who continue to work in such an area must distinguish themselves by offering a value-added service, such as more elaborately detailed renderings of books, or finer inks, etc. No one seriously thinks any loss suffered by the old book-copiers outweighs the enormous benefits that have accrued to humankind as a result of this technological breakthrough and information sharing expansion.

Fast forward to the present: New technologies continue to enable breakthroughs in the reach of information. Examples abound. But this time the industries that would fade away or would need to transform themselves are far more powerful than any book copier ever was. They seek to stifle innovation and keep their current profits secure. They have no interest in transforming themselves to distinguish their product offerings by offering value-added services. Instead they use their legal might to outlaw their competition.

Sometimes it’s hard to get up in arms about the technology issues of today, especially in light of the suffering of Iraqi children or some other such tragedy that certainly deserves our attention. But, if we think about these issues carefully, we will see that as much or more is at stake. Imagine a world where the book-copiers guild was extremely powerful and they were able to outlaw the printing press. The devastating effect on the entire course of human history is unfathomable. We live in such a time, where the powers that be seek to stifle technological innovation for their own monetary gain. This is a dangerous path. We must alert people to those dangers.