Daily Kos on the differences between piracy and homicide.

There’s a great entry over at Daily Kos titled: Shoot someone? Not Smith & Wesson’s fault. Copy a movie? Grokster’s fault. First up, the SCOTUS ruling on case against P2P file sharing company Grokster:

[Hollywood’s] victory [last month]… dealt a big blow to technology companies, which claim that holding them accountable for the illegal downloading of songs, movies, video games and other proprietary products would stifle their ability to develop new products.

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,” Justice Souter wrote.

Now consider legislation being introduced with regards to gun makers:

Senate Republicans on Tuesday moved the National Rifle Association’s top priority ahead of a $491 billion defense bill, setting up a vote on legislation to shield firearms manufacturers and dealers from lawsuits over gun crimes.

“The president believes that the manufacturer of a legal product should not be held liable for the criminal misuse of that product by others,” said White House spokesman Scott McClellan.” We look at it from a standpoint of stopping lawsuit abuse.”

The bill would prohibit lawsuits against the firearms industry for damages resulting form the unlawful use of a firearm or ammunition.

[Senator Larry] Craig said such lawsuits are “predatory and aimed at bankrupting the firearms industry,” unfairly blaming dealers and manufacturers for the crimes of gun users.

RadicalRuss sums it up for us with the following:

Got that? If a company makes a product that is inappropriately used to illegally copy a movie, that company is liable. If a company makes a product that is inappropriately used to illegally kill a human, that company is not liable. What’s the common logic holding these disparate concepts together? Massive corporate special interest money. Welcome to your government of the corporations, by the corporations, and for the corporations, where a pirated copy of “Hollywood Homicide”* is bigger threat than an actual Hollywood homicide.

Only in America.

37 thoughts on “Daily Kos on the differences between piracy and homicide.

  1. I am in agreement about corporate influence in governmental policies. Weapons can however be used to deter violence. Violence is of course a much greater evil than trademark infringement.

  2. “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,

  3. It’s a safe bet if Grokster had been a major $$$ supporter of the president’s campaign, they’d be getting the same cushy treatment as Smith & Wesson.

  4. DOF:

    With all due respect, Grokster is not comparable to gun liability cases.  In fact, Grokster is hardly comparable.  Although Kos does a cute job of stirring the pot, the theories for imputing liability to the manufacturer in the two cases is distinct.

    Just as a point of clarification regarding Grokster, the Court did NOT say that Grokster WAS liable.  The holding of the case is that Grokster COULD BE liable, not that Grokster is.  The case was as much about civil procedure as it was about legal theory. The court reversed a summary judgment decision in favor of Grokster and sent the case back the lower court for further proceedings. 

    I’m not a tech buff so Grokster isn’t that big of deal to me.  I do note that the decision was unanimous, which is unusual. It confirms for me the Court viewed and decided this case as one about civil procedure.

  5. I didn’t say they were comparable, Consi.  I said if Grokster had contributed a lot of money to the Bush campaign, Bush would be defending them.

  6. Of course, if the quality of the music being produced today were higher and the prices for buying a CD were reasonable*, there might not be so much illegal copying going on.  I much prefer having an original CD with the liner notes and graphics than downloading MP3s (even legal ones, such as the ones from Apple’s online music store). 

    * I could be mistaken about this, but wasn’t there some class action lawsuit against the biggest record companies over price fixing, and that they had to drop their prices?  When Bjork’s “Medulla” came out, Tower was selling it for $22.99!!  Luckily, I found it for $13.99 at a ma-and-pa CD shop.  Of course, maybe Bjork’s label wasn’t included in the lawsuit.

  7. I know what you mean, Joe.  I stopped listening to the rdaio when I was 14, although I wouldn’t have minded buying CDs.  However, $20 just for a CD, that might only have a few decnt songs at that!?!  You know, once I walked into a Tower and saw a soundtrack CD for ~$20, and the movie on DVD with the soundtrack included for the same price!  Now that I have internet access I buy an average of 1 CD every other month, because I can get them for reasonable prices off of overstock.com and the buy it now features on ebay.  A side note:  if it wasn’t for me sampling music on file sharing programs, I wouldn’t buy ANY CDs; all of my favourite bands—Cliare Voyant, A perfect Circle, Dave’s True Story—I found my randomly downloading songs by genre.  I liked the few songs so much I bought multiple CDs from each artist.

  8. I could be mistaken about this, but wasn’t there some class action lawsuit against the biggest record companies over price fixing, and that they had to drop their prices?  When Bjork’s “Medulla

  9. Consi: the theories for imputing liability to the manufacturer in the two cases is distinct.

    Could you elaborate on that?

  10. Of course, if the quality of the music being produced today were higher and the prices for buying a CD were reasonable*,

    Sorry, but I think that’s a simplicistic explanation at best, an easy way out at worst.

    You’ll always find loads of music that you don’t like, and other will consider awesome. And ‘commercial crap’ is just another way of saying that you don’t like it.

    As for the price – even if some prixes were fixed, its still mainly a market price in my eyes. People were/are willing to pay for it.

    The reason why I have switched to mp3s is simply utility and a preference for an easy-to-use, all-in-one-folder music library where I don’t have to switch CDs but only have to press a button.

    That said, I would pay rates comparable to old-style cd prices if I got real mp3s for it. The digital-rights managment crap with its shitload of unpractical and doubtful restrictions? Forget it? I use allofmp3.com, which is semi-legal (they pay royalities to the song copyright owners, and the site is legal according to russian laws) and therefore at the moment way to go for me.

  11. allofmp3.com.. wow ! da, thats a hella site..

    i need to calculate exchange rates..
    then figure out syrillic.. looks better than
    some of the us sites..

    whats the “online encoding” biz all about?

  12. I’m no engineer, but why not somehow code it into the cd that certain songs must be ripped into a specific codec?  You could say all copyrighted, nontradable music would burn as ntm files or something more clever.  Everything else would burn as whatever you wanted and then it would become illegal for programs to swap ntm files or convert them to a tradable format.

  13. I’m no engineer, but why not somehow code it into the cd that certain songs must be ripped into a specific codec?

    You just tap the audio data after it’s decoded for playing, with the easiest way using WaveStudio’s “What you hear” input.  If you don’t allow the cd to play on a computer, then you can just feed the audio into a sound card input and make an mp3 from that.

  14. then figure out syrillic.. looks better than
    some of the us sites..

    Kyrillic. Ah, and yes, the site has a reasonably well-translated english version.

  15. The distinction between the two cases, as Consigliere points out, is significant.  If you make something and encourage people to use it illegally, then ought you have some sort of liability? 

    Given that Smith & Wesson is not encouraging folks to go out and unlawfully shoot people, they should be defended against such civil actions.  If Grokster is urging unlawful behavior, then they should bear responsibility.

    The trick, of course, is what constitutes “urging,” and to what extent does Grokster need to take positive action (active monitoring of transfers, automated checking of files) to prevent unlawful use of their product, to what extent do they need to take passive action (verbally discouraging piracy), and to what extent need they merely take no contracy action (simply not say, “Hey, you can download pirated tunes!”).  The answer to that is prone to abuse (and appeal), but that remains to be worked out.

    The problem with the “are you encouraging bad stuff, and thus are liable” fuzziness is that, on the one hand you have the RIAA and other organizations suing the snot out of Grokster, and on the other hand you have organizations and activist groups and individuals and local governments suing the snot out of the gun industry. 

    So, let’s turn it on its head—are those folks who are willing to see Grokster blanket immunized from such suits per se (without any serious consideration of whether they’ve encouraged piracy or not) willing to similarly immunize the gun industry?  Shall we say, “Grokster doesn’t pirate music, people pirate music,” and leave it at that?

    And, DOF, I suspect it is less that the gun industry has given bunches o’ cash to the party they think will best defend them, than that there are plenty of other donators to and voters for the Bush campaign who believe in Second Amendment rights and personal ownership of firearms.  That can be looked at cynically (“pandering to contributors”) or positively (“responding to the constituency”).  Whereas it’s probably less likely that Grokster (etc.) contributed to the GOP, and, more importantly, that much of the activist GOP constituency cares about (or even knows anything about) Grokster.

  16. So, let’s turn it on its head—are those folks who are willing to see Grokster blanket immunized from such suits per se (without any serious consideration of whether they’ve encouraged piracy or not) willing to similarly immunize the gun industry?  Shall we say, “Grokster doesn’t pirate music, people pirate music,

  17. That’s why I asked about it having to do with whether or not there was a disclaimer.  I thought that grokster did not put anything saying “don’t use this illegally”, which led to them being open to liability. 

    My stance is that users are the ones liable for the illegal use of a legal product, not the maker.

  18. I certainly agree with the last two statements about liability.  If on the other hand, a company produces a shoddy product that results in harm to someone (e.g., Bridgestone tires), then the company should be liable.
      Speaking of stupid lawsuits, did you see this?  So, this old woman doesn’t mind if her “precious” grandson sees violence, mayhem, and death, but show some nudity big surprise and explicit sex and he is psychologically harmed?!?  Heh, at least she is trying to hide it under “false advertising, consumer deception and unfair business practices”.

  19. Ragman states: My stance is that users are the ones liable for the illegal use of a legal product, not the maker.

    Agreed, AND everything that Dave said.

    Also, haven’t the telephone/cable/satellite companies always been held blameless for all the conversations, porn, warez and other “legally challenged” material that crosses over and through their networks?  The “Harmless Carrier” argument?

    File sharing P2P networks – like the telephone/cable/satellite co’s – simply *cannot* keep tabs on *everything* that transpires on their networks, because its not as simple as saying “ah-HA! THERE’S an illegal file!” and then removing it.  Can they be expected to do so?  SHOULD they be expected to?  How would they determine what people are doing, and then decide whether its legal or illegal?

  20. I agree that it’s the users that bear the responsibility. I hold very little truck with the “the devil made me do it” defense.

    That said, marketing something specifically for illegal use ought to carry some sort of liability.  If S&W were selling guns with ads that said, “Take out your Mother-in-Law” or “Guaranteed to help you rob banks,” I’d think there should be some civil liability.  If Ford sold trucks as “The Preferred Drive for Underage Kids to Pick Up Girls,” I’d expect law suits.  If Coors ran ads showing kids at the local high school downing their Silver Bullets and having a great time, I’d expect some court action, too.

    So, *if* it is proven that Grokster intentionally advertised their P2P software as “a great way to rip off music from its copyright holders” or “yes, you, too, can be a software pirate,” then I think they should be liable in some fashion.  I suspect my idea of what qualifies as “intentional” and “liable in some fashion” differs from what the RIAA would say, but that’s neither here nor there.

  21. It’s a safe bet if Grokster had been a major $$$ supporter of the president’s campaign, they’d be getting the same cushy treatment as Smith & Wesson.

    DOF: You missed the whole point. It’s a safer bet that if the music and movie industries weren’t lobbying so hard to protect their interests that the Grokster issue would be a non-issue.

    I also disagree that Bush (and most other GOP members) would support Grokster if campaign contributions were made. I’m sure the unregulated P2P networks filled with porn, pirated software, viruses, and terrorist communcations (wink) would get the cold shoulder from Republicans. Just like the gun lobby does from most Dems.

    I think the comparison is flawed. Grokster and the other P2P networks aren’t regulated and controlled like the gun industry, and comparing an industry that produces tangible goods with a communications service is a real stretch. A better comparison would be legislators protecting the gun shows where guns can be illegally purchased or traded. Of course, Grokster has a much higher percentage of illegal traffic than the gun shows where background checks are (usually) done.

  22. DOF: You missed the whole point. It’s a safer bet that if the music and movie industries weren’t lobbying so hard to protect their interests that the Grokster issue would be a non-issue.

    I also disagree that Bush (and most other GOP members) would support Grokster if campaign contributions were made…

    Probably did.  I’m trying to picture the alternate universe in which Grokster and their main constituents put NRA-level of support behind Bush and he says; “Thanks but no-thanks.” 

    The Bushies seem perfectly happy with almost anything that kills adults.  But anything that dings their corporate sponsors, well that’s a different deal altogether…

  23. Try one of these keyboard condoms on your next keyboard!  They’re pretty nifty.

    Uhm, I’m pretty sceptical of those. Don’t they totally change the way typing feels?

    Anyway, do you guys really lose that many keyboards this way? I am still using the same one for 4 years now, and though I sometimes have to open it up to clean lint and stuff, its fine.

    As for getting back on-topic: I read an interesting article about why all those anti-filesharing suits, attacks and so on will not work: Lan parties.

    Or, less succinct – because portable storage devices (USB drives) and LAN connections are big and respectively fast enough these days to simply swap huge collections back and forth when you meet up with your friends.

    So even if filesharing on the net was not possible, it would continue. A bit more like the old model of swapping disks on the schoolyard, but nonetheless. It seems that at some point the companies WILL have to come round and give people a legal way of sharing and find themselves a better revenue model. Even if we have to wait until the mp3 generation reaches the boardrooms.

  24. Uhm, I’m pretty sceptical of those. Don’t they totally change the way typing feels?

    Sure they do, a little bit, but the physical sensation of the actual point of contact between fingers and keyboard is only one small part of the total logged-in experience.  tongue wink

  25. Don’t they totally change the way typing feels?

    Not really, at least the Safeskins that I use don’t.  They’re vacummed formed to the model of your keyboard – what you buy in the store is just the ordering form to mail in.  You get used to it quick.  It’s really for guarding against spills.  If you have a keyboard you REALLY like, like the older ones with a lot of steel in them, then it’s a good idea.  If you don’t mind the $5 keyboards, then the $15 for a KB condom is costly.

    There’s also my freaky example for using them:  I had a roach run onto my keyboard late one night, and before I could flick it off, it darted under the keys.  So the condoms protect against both spills and bugs.

  26. If you have a keyboard you REALLY like, like the older ones with a lot of steel in them, then it’s a good idea.  If you don’t mind the $5 keyboards, then the $15 for a KB condom is costly.

    I got myself an aluminium keyboard these days to replace the old one (yes, I AM shamelessly bragging now, but its oh so pretty and has such a light touch, like a fine watch). To cover that one with a sleeve would be like… I don’t know – eating a five-course meal with a plastic spork?

  27. There are many comparisons that I have used over the years to explain why suing gun manufactureres for crime is illogical. Like if a wife kills her cheating husband by running over him with her car, is the auto manufacturer guilty? Or if a kid kills another with a baseball bat, should the bat manufacturer pay? When a kid drops a watermelon off a bridge and kills a motorist, should the farmer be put out of business? If you buy a gun, and it blows up in your face, the manufacturer is liable, if you use it to murder someone, you am liable.

  28. There are many comparisons that I have used over the years to explain why suing gun manufactureres for crime is illogical. Like if a wife kills her cheating husband by running over him with her car, is the auto manufacturer guilty? Or if a kid kills another with a baseball bat, should the bat manufacturer pay? When a kid drops a watermelon off a bridge and kills a motorist, should the farmer be put out of business? If you buy a gun, and it blows up in your face, the manufacturer is liable, if you use it to murder someone, you am liable.

    All eminently reasonable points. Unless the society itself reaches a consensus (legal and emotional) that guns THEMSELVES should be considered restricted and ‘evil’ (obviously not gonna happen in the US anywhere in the near future), then no gun manufacturer should be sued.

    That said, the very SAME argument can be made for filesharing programs. To apply other standards there, where any ‘fault’ is unlikely to ever hurt anyone physically (quite unlike with guns) is simply hypocrital. THAT was at least 50% of the point Kos was making, as I see it.

  29. As a question to those her who have some idea about US law:

    Could this decision (that gun manufacturers can not be sued forthwith) be used to LEGALLY protect file sharing programs? ‘Legally’ meaning that a defendant could point to it in court, as opposed to simply pointing at the MORAL hypocrisy, as we do here?

  30. Sure they do, a little bit, but the physical sensation of the actual point of contact between fingers and keyboard is only one small part of the total logged-in experience.

    You could be a spokesman for KC DoF; not because your logic is compelling, but because you just made me spit coffee all over my keyboard, thus demonstrating the utility of said product in the most immediate and intimate of fashions.

    Kudos!  You’re a marketing genius! (bastard.  Now I have to go find a rag).

  31. Unless the society itself reaches a consensus (legal and emotional) that guns THEMSELVES should be considered restricted and ‘evil’…

    Well to be fair to “the other side,” cars, baseball bats, and watermelons can only be misused as weapons.  Guns are properly and primarily weapons.  That might weaken or complicate the analogy somewhat.

  32. Speaking of cars versus guns, I was just looking up the CDC data the other day while I considered writing Greg Palast about an article on making guns illegal.  This is the prelimenary 2003 data from the CDC for deaths in the US.  The number of homicides by discharge of firearms was 11,599.  The number of deaths in motor vehicle accidents was 44,059.  The number of deaths in other transport accidents was 47,325 while 16,859 people committed suicide by shooting themselves.

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