"as shown by clear expression or other affirmative steps taken ..." [LWN.net]

"as shown by clear expression or other affirmative steps taken ..."

Posted Jun 27, 2005 18:31 UTC (Mon) by vblum (guest, #1151)
Parent article: Supreme Court rules against file swapping (ZDNet)

"Clear expression" would have been a good definition; a court could probably not justify to let someone off who clearly confirmed their intentional, material support for breaking the law.

"... or other affirmative steps taken ..." - whew - that's SO badly defined! What is, pray tell, an affirmative step? Participating in Bittorrent? If only they had written a clearer definition here, this inconclusive statement leaves far too much room for debate. Those five words are going to generate a lot of worthless & hypocritical printed paper in many lower courts, from either side ...

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"as shown by clear expression or other affirmative steps taken ..."

Posted Jun 27, 2005 18:59 UTC (Mon) by louie (subscriber, #3285) [Link]

Don't just read the ZDNet article; the ruling itself contains fairly extensive discussion of what those other affirmative steps might be. [Mind you, they still aren't that clear, but it's a lot more clear than that statement.] A ton of links, inc. bittorrent of the ruling itself, in my blog post. (IANAL, as the post says.)

"as shown by clear expression or other affirmative steps taken ..."

Posted Jun 27, 2005 20:19 UTC (Mon) by vblum (guest, #1151) [Link]

Thanks for the quick and accurate clarifications. [In addition to these really useful links, here's hoping that Jon Corbet is already working at one of his usual high-quality assessments on the same topic ;-) ]

"as shown by clear expression or other affirmative steps taken ..."

Posted Jun 27, 2005 19:38 UTC (Mon) by yokem_55 (subscriber, #10498) [Link]

Some clafification might be that this statement would exclude the absence of actions so long as there is no evidence that the absence was willfully negligent. In one of the footnotes to the ruling, there is a statement to the effect that, in the absence of any evidence regarding the intent of the distrubutor of the tech in question, Sony still applies.

Is this all doom and gloom for innovators? Not necessarily. It will be interesting to see how the first lawsuits based on this ruling(and this ruling is ambiguous enough that they will come) play out. My rough guess is that tech makers will have to conduct some due dilligence in the marketing of thier new technologies and how they impliment thier business models. The people who now hoav the best defence against getting nailed on this are those that are developing technologies and don't have a business/profit model associated with it. Specifically, non-commercial open source developers creating the tech for its own sake, irrespective of how it ends up getting used. Some basic (even if ineffective) filters might end up having to be utilized in order to demonstrate some concern for due dilligence...

"as shown by clear expression or other affirmative steps taken ..."

Posted Jun 28, 2005 14:07 UTC (Tue) by kleptog (subscriber, #1183) [Link]

I think what is clear is that the SCOTUS didn't want to give a free-pass to every technology just because there are legitimate uses. As with murder and manslaughter, the effect is the same, it's the *intent* that's relevant. Ofcourse, people might have assumed they had a free-pass since Sony-Betamax but TANSTAAFL.

How do you determine intent? The same way as in murder trials, by looking at the evidence on a case-by-case basis. It is not the supreme court's job to define the rules, that's the legislature's job. The supreme court rules on fuzziness in issues presented to it.

Anyway, the lower courts will now go back to the evidence presented and decide whether *this case* falls under the guidelines suggested.

If you want clear rules, you need to be knocking on legislatures door. The legal system can only (by definition) decide on individual cases.

This is however an interesting distinction between civil and common law systems. In civil law (ie mainland europe) it is considered the role of the legislature fix found problems in the system. In common law (ie the US) it is the court's problem to patch what the legislature broke.

As an aside, one interesting idea would be for people or organisations to PGP sign lists of checksums of files they consider free to distribute. Then you could fire up your P2P client and tell it to only list stuff considered by that party to be free. Ofcourse, this could also be used by hacker X to sign files he ripped saying that he offered a certain quality. I think the fact that at the moment there is no way to only list free files could be a liability. A scheme like this would allow people to market "legitimate download only" clients using the gnutella network. Good idea, no?