Competing values of the Grokster case

The folowing post has two assignments namely;

1.Competing values of the Grokster case

Respondent companies [Grokster] distribute free software that allows computer users to share electronic files through peer-to-peer networks, so called because the computers communicate directly
with each other, not through central servers. Seeking damages and an injunction, a group of movie studios and other copyright holders (hereinafter MGM) sued respondents for their users’ copyright
infringements, alleging that respondents knowingly and intentionally distributed their software to enable users to infringe copyrighted works in violation of the Copyright Act. Discovery revealed
that billions of files are shared across peer-to-peer networks each month.

After the notorious file-sharing service, Napster, was sued by copyright holders for facilitating copyright infringement, both respondents promoted and marketed themselves as Napster alternatives.
They receive no revenue from users, but, instead, generate income by selling advertising space, then streaming the advertising to their users. As the number of users increases, advertising
opportunities are worth more. There is no evidence that either respondent made an effort to filter copyrighted material from users’ downloads or otherwise to impede the sharing of copyrighted
files.

While acknowledging that respondents’ users had directly infringed MGM’s copyrights, the District Court nonetheless granted respondents summary judgment as to liability arising from dis- tribution
of their software. The Ninth Circuit affirmed. It read Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), as holding that the distribution of a commercial product capable
of substantial noninfringing uses could not give rise to contributory liability for infringement unless the distributor had actual knowledge of specific instances of infringement and failed to act
on that knowledge. Because the appeals court found respondents’ software to be capable of substantial noninfringing uses and because respondents had no actual knowledge of infringement owing to the
software’s decentralized architecture, the court held that they were not liable. It also held that they did not materially contribute to their users’ infringement because the users themselves
searched for, retrieved, and stored the infringing files, with no involvement by respondents beyond providing the software in the first place. Finally, the court held that respondents could not be
held liable under a vicarious infringement theory because they did not monitor or control the software’s use, had no agreed-upon right or current ability to supervise its use, and had no
independent duty to police infringement.

Held: 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, going beyond
mere distribution with knowledge of third-party action, is liable for the resulting acts of infringement by third parties using the device, regardless of the device’s lawful uses.

The tension between the competing values of supporting creativity through copyright protection and promoting technological innovation by limiting infringement liability is the subject of this case.
Despite offsetting considerations, the argument for imposing indirect liability here is powerful, given the number of infringing downloads that occur daily using respondents’ software. When a
widely shared product is used to commit infringement, it may be impossible to enforce rights in the protected work effectively against all direct infringers, so that the only practical alternative
is to go against the device’s distributor for secondary liability on a theory of contributory or vicarious infringement. One infringes contributorily by intentionally inducing or encouraging direct
infringement, and infringes vicariously by profiting from direct infringement while declining to exercise the right to stop or limit it. Although “[t]he Copyright Act does not expressly render
anyone liable for [another’s] infringement,” Sony, 464 U.S., at 434, these secondary liability doctrines emerged from common law principles and are well established in the law, e.g., id., at 486.
Pp. 10–13.

Sony addressed a claim that secondary liability for infringement can arise from the very distribution of a commercial product. There, copyright holders sued Sony, the manufacturer of videocassette
recorders, claiming that it was contributorily liable for the infringement that occurred when VCR owners taped copyrighted programs. Because the VCR was “capable of commercially significant
noninfringing uses,” the Court held that Sony was not liable. In this case, the Ninth Circuit misread Sony to mean that when a product is capable of substantial lawful use, the producer cannot be
held contributorily liable for third parties’ infringing use of it, even when an actual purpose to cause infringing use is shown, unless the distributors had specific knowledge of infringement at a
time when they contributed to the infringement and failed to act upon that information. Sony did not displace other secondary liability theories.

Nothing in Sony requires courts to ignore evidence of intent to promote infringement if such evidence exists. It was never meant to foreclose rules of fault-based liability derived from the common
law. Where evidence goes beyond a product’s characteristics or the knowledge that it may be put to infringing uses, and shows statements or actions directed to promoting infringement, Sony’s
staple-article rule will not preclude liability. At common law a copyright or patent defendant who “not only expected but invoked [infringing use] by advertisement” was liable for infringement.
Kalem Co. v. Harper Brothers, 222 U.S. 55, 62–63. The rule on inducement of infringement as developed in the early cases is no different today. Evidence of active steps taken to encourage direct
infringement, such as advertising an infringing use or instructing how to engage in an infringing use, shows an affirmative intent that the product be used to infringe, and overcomes the law’s
reluctance to find liability when a defendant merely sells a commercial product suitable for some lawful use. A rule that premises liability on purposeful, culpable expression and conduct does
nothing to compromise legitimate commerce or discourage innovation having a lawful promise.

On the record presented, respondents’ unlawful objective is unmistakable. The classic instance of inducement is by advertisement or solicitation that broadcasts a message designed to stimulate
others to commit violations. MGM argues persuasively that such a message is shown here. Three features of the evidence of intent are particularly notable. First, each of the respondents showed
itself to be aiming to satisfy a known source of demand for copyright infringement, the market comprising former Napster users. Respondents’ efforts to supply services to former Napster users
indicate a principal, if not exclusive, intent to bring about infringement. Second, neither respondent attempted to develop filtering tools or other mechanisms to diminish the infringing activity
using their software. While the Ninth Circuit treated that failure as irrelevant because respondents lacked an independent duty to monitor their users’ activity, this evidence underscores their
intentional facilita- tion of their users’ infringement. Third, respondents make money by selling advertising space, then by directing ads to the screens of computers employing their software. The
more their software is used, the more ads are sent out and the greater the advertising revenue. Since the extent of the software’s use determines the gain to the distributors, the commercial sense
of their enterprise turns on high- volume use, which the record shows is infringing. This evidence alone would not justify an inference of unlawful intent, but its import is clear in the entire
record’s context (pp. 20–23).

In addition to intent to bring about infringement and distribution of a device suitable for infringing use, the inducement theory requires evidence of actual infringement by recipients of the
device, the software in this case. There is evidence of such infringement on a gigantic scale. Because substantial evidence supports MGM on all elements, summary judgment for respondents was error.

Case Questions:

What are the two competing values that were the subject of the Grokster case? (5 points)
What attempt, if any, did Grokster make to filter copyrighted works? (5 points)
What is the rule on inducement of infringement? (5 points)
How does the rule in Sony v. Universal cited by the court in Grokster apply to videos uploaded to YouTube?

2.Urbanization among the Kurds

Think of a culture or subculture about which you are curious, whether or not you have had the opportunity to spend time among its mem bers. How might you go about doing fieldwork among
them? What dif ficulties might you encounter? What might “deep hanging out” entail?
the morale of the Kurdish people was high when their enemies were outside forces, but when Kurds began fighting against their fellow Kurds, they lost hope. Why would this happen?
How much do you know about the origins of your own particular eth nic heritage? Is ethnic origin something that is important to you? Why or why not?
Do you think that the Iraqi Kurds or the Turkish Kurds have a brighter future? Why?
The author states that television seems to have been the death of much of the rich tradition in Kurdish oral communication. Has the advent of television led to major changes in your own
culture? Cite some examples.
Divorce is not as accepted or prevalent in the Middle East as it is in the United States. Consider the issue of divorce from each perspective. Which do you feel is more preferable and why?
Are there similarities between the roles of your community leaders or local government officials and Kurdish agahs?
Compare the traditional role of Kurdish women with the role of women in your culture. Do women’s lives generally improve with Westernization?
Explain the differences between guilt-focused cultures and shame focused cultures.
Compare and contrast urbanization among the Kurds with urbaniza tion in your country with regard to family life and moral values.

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