The Substantially Similar Weblog

I’ll just join the chorus in linking to SCOTUSblog, which reports that Grokster and StreamCast have lost their case. I’m not sure how SCOTUSblog found out before the opinion was posted, but it should appear here in the next few hours. Apparently the opinion was unanimous.

Update: Souter opinion, Ginsburg concurrence (with Rehnquist and Kennedy), Breyer concurrence (with Stevens and O’Connor).

No opinion in the Grokster case today. Guess we’ll have to check back next week.

Stay tuned—Larry Lessig will be on The Connection today, discussing the Grokster case. It’s a truism that you shouldn’t rely too much on the justices’ comments at oral argument, but some initial accounts suggest several were leaning in Grokster’s favor. At the very least they seemed to grasp the core issues and some of what’s at stake.

My near daily spam from the Christian Coalition finally addressed some issue other than Terri Schiavo (about whom I have thus far scrupulously avoided blogging!). Today’s headline was “Christian Coalition on Side of Hollywood in Today’s Supreme Court case (M.G.M. vs. Grokster)”. Apparently their big concern is pornography on peer-to-peer networks. I leave it to more clever pundits to elucidate the irony of the Christian Coalition supporting Hollywood in an effort to keep sex away from our nation’s vulnerable Christian youths and adults.

As I come perilously close to becoming a real live attorney, I’ve been thinking a lot about how I might practice intellectual property law while still working to change some of the most broken parts of the regime. Erik J. Heels discusses this dilemma cogently in Am I a Copyfighter?: “One practitioner’s struggles with practicing — while fighting to change — the law in the dark ages of the Internet.” Highly recommended for anyone in a similar situation.

I appreciate Groklaw’s timely and incisive coverage of SCO v. IBM; however, the site’s primary author (a paralegal) sometimes makes subtle erroneous statements of law. For example, in yesterday’s posting, What’s Wrong with Enderle’s “Legal” Strategy, she writes:

Mr. Enderle, SCO’s true believer, has written that if he were on a jury, he’d vote for SCO. That, of course, does not amaze you. He has also given us a heads up on what he believes they will tell a jury and why he thinks it will convince them. Unfortunately for Mr. Enderle’s theory, he doesn’t understand that when you ask for a declaratory judgment, as IBM has on its counterclaims, the jury doesn’t decide it. Declaratory judgments are decided by the judge.

This is wrong. See, e.g., Beacon Theatres v. Westover, 359 U.S. 500 (1959):

The District Court’s finding that the Complaint for Declaratory Relief presented basically equitable issues draws no support from the Declaratory Judgment Act, 28 U.S.C. 2201, 2202; Fed. Rules Civ. Proc., 57. See also 48 Stat. 955, 28 U.S.C. (1940 ed.) 400. That statute, while allowing prospective defendants to sue to establish their nonliability, specifically preserves the right to jury trial for both parties. [..] It follows that if Beacon would have been entitled to a jury trial in a treble damage suit against Fox it cannot be deprived of that right merely because Fox took advantage of the availability of declaratory relief to sue Beacon first.

(emphasis added)
The issue is not whether it is a declaratory judgment action, but whether there are disputed issues of fact for the jury and the nature of the relief sought. Equitable (or injunctive) relief must be granted by a judge, but claims for other sorts of relief can be heard by a jury, whether it is a declaratory judgment action or not. I haven’t examined the papers carefully enough to answer that question definitively in this case, but I suspect there are disputed issues of fact in the counterclaim apart from any requests for injunctive relief. Thus, IBM’s declaratory judgment counterclaims may, in fact, go to a local jury.

This is similar to a Groklaw error from this past summer, in which the author confused a preliminary injunction or summary judgment (both of which are decided by a judge) with declaratory judgment. See my explanations at the time.

Today is Grey Tuesday·, a protest against the negative impacts of copyright law on artists. Unfortunately, I’m in my last set of final exams and haven’t even had time to make my site grey or post the MP3s. Steve·, however, has a nice little piece and links explaining the whole business·. See also Larry Lessig’s· The Black and White about Grey Tuesday·.

Brian McGroarty· (who has a very sparse web page) writes on Linux-Elitists·: Microsoft goes after Linux kernel downloaders?·.

In the wake of the recent accidental leak of the Microsoft Windows Source Code to the Internet·, McGroarty started a BitTorrent· torrent entitled “Kernel source here,” serving up the Linux Kernel·. McGroarty writes:

Imagine my surprise when my DSL stops working this morning, I call my provider, and I learn that I’ve been accused of copyright infringement.
[…]
Now, admittedly I was just asking for it by hinting at something that might offend the big giant. Still, it took them three or four days to issue this letter. In the meantime, shouldn’t they have been able to find someone capable of cracking open a .tar.bz2? Did nobody raise the question of how a leaked CD fits into a 32m file?

Microsoft must be using batch “take down” tactics, similar to the recording industry. You’d think they’d be clever enough to devise a script that could differentiate actual copies of its leaked source code from things that are totally unrelated. Crying wolf could have predictable consequences.

If people really want to make things hard for Microsoft, they would post articles and files all over the Internet entitled “kernel source here.”

Although I’ve always understood that there’s a link between digital rights management (or DRM) and product lock-in, it really hit home for me today.

For those of you who are unfamiliar with the concept of Digital Rights Management: there are a variety of DRM schemes, but basically the point is to restrict what you can do with files that reside on your computer. For example, when you purchase tracks from iTunes· or Napster·, they are encrypted in such a way that you should only be able to play those tracks on the machine you purchased them with. (A Norwegian programmer has cracked the iTunes DRM scheme, however.·).

Now obviously this causes some inconvenience if you change computers frequently, or if you want to listen to your music on many different devices. In fact, as a side effect of iTune’s DRM scheme, you might purchase tracks, move to Canada, and then be unable to listen to them at all·.

But the more insidious problem is the lack of interoperability. Here’s an example from the “real world”:

My family is having an 80th birthday party for my grandmother next week. We’re renting an LCD projector and are planning on having a fancy slideshow with a soundtrack of popular showtunes to accompany photographs from the past 80 years. So my family members, thinking it would be easy, purchased a bunch of tracks on Napster and iTunes for the slideshow.

The slideshow program, however, only knows how to play MP3 or WAV files. Since the Napster and iTunes tracks are encrypted and protected with DRM, there’s no way to convert them to MP3. Too bad for us.

Presumably there is other proprietary slideshow software that is built to work with the Apple and Microsoft DRM music schemes. So if you want to purchase music online and have it accompany your photo slideshow, you’re going to have to pick the approved products. It gets even worse since many of these schemes are covered by patents, and any software or hardware maker that wants to implement it has to pay a licensing fee—and the patent owner could simply refuse to license the patent to competing entities.

Sometimes it’s hard to explain to normal people what the problem is with DRM. I think this is a perfect example of ordinary people experiencing lock-in and considerable trouble while trying to take advantage of what should be the ultraconvenience of digital media.

Is it any wonder that consumers might prefer file sharing on peer-to-peer networks—which costs nothing—to purchasing expensive media encumbered with DRM?

CNN Money· reports the following headline· today:

/K I L L K I L L K I L L — The SCO Group/

Indeed. (as always, more background on the SCO lawsuit is available·).