==== On 2/15/02 5:24 PM, bruce@netpd.com wrote:
> The vast majority of usage of the web is for legitimate purposes, the
> vast majority of usage of Morpheus is to commit piracy.  The web has
> 'significant non infringing usage', Morpheus does not.
> 
> Therefore under current laws the Web has the right to exist and Morpheus
> does not.  

Bruce is mistaken about what the legal rule is. And if he meant to argue
that this is what the rule *ought* to be, he's still mistaken.

Bruce does have 4 Justices of the Supreme Court on his side. In the Sony
Betamax case, the "proportional uses" test was endorsed by 4 justices. But
the 5 justice majority rejected that view in favor of "merely capable of a
substantial noninfringing use". In fact, the majority was satisfied that the
usage of a VCR to tape programs that did not object to taping (Mr. Rogers,
NFL games) constituted enough substantial noninfringing use to defeat
Universal's copyright claim. These uses constituted only *7%* of Betamax
use. So much for "vast majority" as the threshold.

Now some may wonder why this should be the rule. Here, I will take the
liberty to reproduce a response I recently gave to another skeptical
Pho-ster offlist. To sum up:

The "proportional uses" test, while intuitively attractive, inexorably leads
to a world where tech companies take orders from Hollywood. Where they are
forced to implement SDMI, HDCP, CPRM, and the like, in order to avoid the
unpredictable dangers of a court proceeding. And while copyright may entitle
copyright owners to lots of things, it does not entitle them to dictate the
course of technological innovation in this fashion.

The full story:

> Where's the real non-infringing use?

Well, for a start, we've outlined a number of actual non-infringing uses in
our briefs in the Morpheus case, including circulation of Project Gutenberg
texts, public domain archival film, and authorized works by JivePlayer.com.
We didn't even go into the potential future noninfringing uses (which you
can imagine, if a p2p protocol becomes near universal on PC desktops), or
the "gray area" fair uses.

But I assume you are really talking about the *proportion* of infringing to
noninfringing uses. While I certainly understand the intuition behind that
concern, I'd ask you to step back and ask yourself what such a rule would
mean, in practice, for technologists.

First off, can you be sure what people will use a new technology for? Did
Marc Andressen really know what the browser would be "predominantly" used
for? And wasn't it (and perhaps still is) predominantly used for infringing
activity, since to this day we don't have a firm grip on the copyright
status of linking, etc? What did Sony and Xerox think the VCR and
photocopier were going to be predominantly used for? Were their guesses
right? How would the execs have felt if you told them that a wrong guess
could mean and injunction and billions in statutory damages? Wouldn't they
have said -- "the hell with that, let's just ask Hollywood what will placate
them and build that."

And, of course, even if you guess right, how would you feel about having to
go to court and try to prove it with experts and surveys? Once you make the
question one of proportion, you make it a question that automatically gets
to a jury, which means millions in legal fees and the possibility of interim
injunction in the hands of an unpredictable judge (remember Connectix
Virtual Playstation?).

How about the Diamond Rio, the Apple iPod, or the ReplayTV? Would execs have
built them differently if they faced immense damages, injunctions, and
uncertain results in court? Would they instead have built the Sony
MusicClip, the HP DE100C, and the TiVo (all including cripple-ware DRM)?
Would any tech company ever test the bounds of fair use, expanding consumer
choices with technology? Would any tech company ever even get close to the
line? (Witness the ReplayTV lawsuit.)

The proportional uses test, while intuitively attractive, inexorably leads
to a world where tech companies take orders from Hollywood. Where they are
forced to implement SDMI, HDCP, CPRM, and the like, in order to avoid the
dangers of a court proceeding. And while copyright may entitle copyright
owners to lots of things, it does not entitle them to dictate the course of
technological innovation in this fashion.

Fred

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