[DMCA-Activists] Grokster Respondents Filings

[Seth Johnson]

Of course, most of you know already that the respondents briefs
were filed yesterday for MGM v. Grokster et al.

EFF's directory of Grokster briefs:

> http://www.eff.org/IP/P2P/MGM_v_Grokster/


There is such a great showing on this case!

For no good reason other than raw bias, I am posting Eben
Moglen's brief for FSF and NYFU below.

Eben's brief is at:

> http://www.eff.org/IP/P2P/MGM_v_Grokster/20050301_fsf_nyfu.pdf

(Text pasted below.)


Seth

---

> http://www.eff.org/IP/P2P/MGM_v_Grokster/20050301_fsf_nyfu.pdf



No. 04­480 

IN THE 

Supreme Court of the United States 

METRO­GOLDWYN­MAYER STUDIOS, INC., et al., 
Petitioners, 

v. 

GROKSTER, LTD., et al., 
Respondents. 

On Writ of Certiorari to the United States 
Court of Appeals for the 
Ninth Circuit 

Brief Amici Curiae of the 
Free Software Foundation and
New Yorkers for Fair Use 
in Support of Respondents 

EBEN MOGLEN 
Counsel of record 
435 West 116th Street 
New York, NY 10027 
(212) 854­8382 
Counsel for Amici Curiae 


QUESTION PRESENTED 

1. Did the Court of Appeals rightly conclude that the  doctrine
of contributory copyright infringement cannot be used to prohibit
the Internet? 

< SNIPPED TABLES OF CONTENTS AND AUTHORITIES >

INTEREST OF Amici Curiae

This brief is filed on behalf of the Free Software Foundation, a
charitable corporation with its main offices in  Boston,
Massachusetts. 1 The Foundation believes that  people should be
free to study, share and improve all the  software they use, as
they are free to share and improve  all the recipes they cook
with, and that this right is an essential aspect of the system of
free expression in a technological society. The Foundation has
been working to  achieve this goal since 1985 by directly
developing and  distributing, and by helping others to develop
and distribute, software that is licensed on terms that permit
all  users to copy, modify and redistribute the works, so long 
as they give others the same freedoms to use, modify and 
redistribute in turn. The Foundation is the largest single 
contributor to the GNU operating system (used widely today in its
GNU/Linux variant for computers from PCs to  supercomputer
clusters). The Foundation's GNU General  Public License is the
most widely used "free software" license, covering major
components of the GNU operating  system and tens of thousands of
other computer programs  used on tens of millions of computers
around the world.  The Foundation is strongly interested in the
use and development of copyright law to encourage sharing, and
to  protect the rights of users and the public domain. 

This brief is also filed on behalf of New Yorkers for Fair  Use,
a non­profit advocacy organization incorporated in  New York. New
Yorkers for Fair Use defends the right  of private ownership of
computers, and the rights of free  speech and free association,
especially in new forms made  possible by the Internet. We defend
the interests of all citizens who benefit from flexible and
innovative use of digital technology, the communications
infrastructure, and  published information. Some members of New
Yorkers  for Fair Use earn their livings by writing, using, and
distributing software. Should the laws be changed so that we 
must consider whether we will be sued for writing, using,  or
distributing software which facilitates indexing, presentation of
indices and catalogues, and transmission of bits  across the
Internet, our livelihoods would be at risk. 


SUMMARY OF ARGUMENT 

Contrary to petitioners' self­serving announcement, this  is not
"one of the most important copyright cases ever to  reach this
Court." Pet. for Cert. at 1. The Court below quite  properly
rejected petitioners' novel and untenable claim  that the
doctrine of contributory copyright infringement  affords a few
copyright­related businesses power to define  the technical
structure of the Internet. 

Just a few short terms ago, the movie industry was  proclaiming
the plenary extent of Congressional power  to make the policy
choices -- balancing the interests of  authors, publishers and
users -- that constitute copyright  doctrine. See MPAA Br. Amicus
Curiae in Support of  Resp. in Eldred v. Ashcroft, No. 01­618, at
3. How  soon they forget. This year the industry's new position
is  that the largest issues of copyright policy, concerning new 
technologies of distribution, are appropriately dealt with  not
by Congress, but through judicial development of secondary
liability doctrine. 

Contrary to a clear line of cases extending back to the decision
in White­Smith Music Publishing Co. v. Apollo Co., 209  U.S. 1
(1908), petitioners continue to argue in this Court  that
manufacturers and providers of new technologies of  distribution
are secondarily liable for infringing uses of  that technology of
which they are unaware and over which  they have no control.
Petitioners go farther, and argue that  even widespread,
substantial non­infringing uses of the  new technology do not
insulate its manufacturers from liability for others' acts. All
of this is law that petitioners  made up: they have no statutory
bases for their claims,  and are arguing here, as they argued
below, that they  don't need any. As though this degree of
overreaching  were insufficient evidence of their mettle,
petitioners go on  to identify as the technical features of
respondents' computer networking software that establish their
entitlement  to relief those features that are shared by the
whole recent  generation of Internet protocols, embodying the
future of  network design. In the teeth of this Court's clear
statements extending back almost a century, without the slightest
statutory justification, petitioners claimed below that  they had
a right to veto the technological design that organizes the
majority of contemporary traffic on the global  Internet. Not
surprisingly, they lost, and now resume their  blustering before
this Court. In referring to this as a very  important case,
petitioners characteristically mistake self-importance for the
real thing. 


ARGUMENT 


I. This Court Should Reject Petitioners' Overreaching  Claim to
Control the Design of the Internet through  Secondary Copyright
Liability 

A. PETITIONERS ARE ACTUALLY CLAIMING POWER TO  DEFINE THE
TECHNICAL DESIGN OF THE INTERNET 

At the heart of Petitioners' argument is an arrogant  and
unreasonable claim -- even if made to the legislature  empowered
to determine such a general issue of social  policy -- that the
Internet must be designed for the convenience of their business
model, and to the extent that its  design reflects other
concerns, the Internet should be illegal. In petitioners' own
words, "Grokster's and StreamCast's services are designed so that
users can easily and  anonymously connect with like­minded
[users]," which  "breed[s] a culture of contempt for intellectual
property,  and for the rights of others generally, in
cyberspace." Pet.  Br. at 4, 13. Specifically, petitioners claim
that respondents' technological choices involve decentralized
indexing, id. at 9, lack of access controls (in contrast to a
supposed "common practice" for internet services), id. at 10, 
absence of binding license agreements, id. at 11, and failure to
implement centralized filtering, ibid, and that these  technical
choices in network architecture are demonstrative of respondents'
complicity in "erod[ing] ... the very  foundations of copyright
law in the digital age." Id. at 14. 

Petitioners' view of what constitutes the foundation  of
copyright law in the digital age is as notable for its 
carefully­assumed air of technical naivete as for the audacity
with which it identifies their financial interest with  the
purpose of the entire legal regime. The combination  of technical
features which, as petitioners know full well,  distinguishes
most current innovations in the employment  of computer networks
throughout all facets of social life,  is, according to
petitioners, an aspect of the supposed "inducement" to direct
infringement that petitioners claim  distinguishes this case from
Sony Corp. v. Universal City  Studios, Inc., 464 U.S. 417 (1984).
Pet. Br. at 27--29. Petitioners' whole theory comes to this: When
the ability  to "separate" infringing from non­infringing
communications is within the realm of technological possibility,
even  if only through one possible network design, a centralized
server­client architecture, that route must be chosen.  Failure
to adopt that technical architecture by software  designers
creating network protocols and applications establishes secondary
liability for later acts of infringement  of which the technical
designers were unaware and over  which they had no control. Id.
at 32--33. Petitioners contend that their preferred model of
computer networking  technology is the only possibility that
properly "strike[s] a  balance between a copyright holder's
legitimate demand  for effective ... protection" and "the rights
of others freely  to engage in substantially unrelated areas of
commerce."  Id. at 17, (quoting Sony, 464 U.S., at 442). They
claim  that, without the slightest legislative authorization,
federal courts should proceed to fasten this restrictive view  of
acceptable technical design upon the global Internet, regardless
of the myriad and commercially­significant uses  of
non­hierarchical peer­to­peer technology, as though this  Court's
decision in Sony had provided no guidance to the  contrary. 

To be sure, petitioners attempt to obscure the extent to  which
they would recast and expand this Court's established approach to
secondary copyright liability, by focusing on what they claim is
respondents' "specific intent of  inducing infringement." Pet.
Br. at 26. But this is merely  obfuscatory. Petitioners proclaim
that "creation and operation of the services constitutes material
contribution under settled law, and standing alone justifies
liability" once  their theory of Sony, rejected by the Court
below, is conceded. Id. at 25. But "creation and operation of the
services," despite petitioners' pretense of technological
ignorance, means "participating in the peer­to­peer redesign  of
the Internet." Petitioners are claiming that the direction  of
contemporary technology is in itself "material contribution to
copyright infringement." 

B. THE INTERNET IS DEVELOPING IN A DIRECTION  CONTRARY TO
PETITIONERS' VIEW OF THEIR BUSINESS INTERESTS 

The digital network currently transforming society is  a
technology conceived out of a single, specific need:  to share
data among independently­operating computers.  Early work on the
architecture for what would eventually  become the Internet
envisioned a decentralized, densely  interconnected network of
machines exchanging data with  each other as peers, thereby
creating a system that would  recover gracefully from the failure
of individual machines  and would efficiently use the resources
of the entire machine ecology: bandwidth, CPU cycles, and storage
space.  See Nelson Minar and Marc Hedlund, A Network of Peers: 
Peer­to­Peer Models Throughout the History of the Internet, in 
PEER TO PEER: HARNESSING THE BENEFITS OF A DISRUPTIVE TECHNOLOGY
3­15 (Andy Oram ed., 2001). As  the Internet began to see
widespread use, the architecture  took an unexpected turn away
from its initial design in response to the technical and economic
realities of its institutional users. Storage space and network
bandwidth were  too expensive for casual employment. Specific,
limited  applications, embodying a "client­server" model emerged 
wherein expensive machines with large disks were outfitted with
fast network connections in order to serve data  to multiple
end­user desktop machines, each of which featured limited storage
and was connected to the network by  a slow connection. Thus,
relatively few institutions came  to be the gatekeepers of data
distribution on the Internet  by way of their fast, expensive
data servers pumping data  onto the network. 

The past decade has seen tremendous changes in the  economics and
technology of personal computing and networking. High­bandwidth
network connections are now  within the budget of individuals for
their personal use,  and storage space has become cheap enough
that users  rarely have to budget it at all. Accordingly, network
dynamics have begun once again to reflect the initial design of
the Internet: each connected machine now has  the surplus
resources to store and serve large amounts of  data to peer
machines on the network, and the mediating  presence of a
high­bandwidth server is no longer necessary. These direct
peer­to­peer data exchanges make efficient use of all the
resources available on the network,  mobilizing unused bandwidth
and storage space on millions of desktop machines to facilitate
applications on the  scale of the entire Internet. See Press
Release, O'Reilly Media, P2P Research Report Strips the Hype from
Peer­toPeer (Nov. 7, 2001), available at http://www.oreilly.com/ 
www/oreilly/press/p2presearch.html (Nov. 7, 2001);  see also Clay
Shirky, What's P2P and What's Not, available at
http://www.openp2p.com/pub/a/p2p/2000/11/ 
24/shirky1­whatisp2p.html (Nov. 24, 2000). Peer­to­peer  data
management "has potential benefits in bandwidth  sharing (e.g.
distributed content streaming), load balancing, fail­over
redundancy, collaborative content creation and maintenance, and
more." KELLY TRUELOVE ET  AL., 2001 P2P NETWORKING OVERVIEW: THE
EMERGENT  P2P PLATFORM OF PRESENCE, IDENTITY, AND EDGE RESOURCES
(2001). And these benefits have not gone unnoticed by the
technical and academic communities. Computer scientists at MIT
and Berkeley developing a nextgeneration computer network that
may supplant the current Internet have recognized the strengths
of peer­to­peer  data networks; their National Science
Foundation­funded  project, IRIS, employs a peer­to­peer
framework to ensure  security, reliability, and efficiency. 2 The
digital technology  industry has also realized the benefits of
peer­to­peer file  sharing as a means of efficiently distributing
and storing  large amounts of data: Both Microsoft and IBM have
extensive technology projects focused on this area. 3 

According to petitioners, however, the entire process of 
replacing "centralized filtering" and "controlled access"  with
"decentralized indexing" and peer­to­peer sharing is  nothing
more or less than "material assistance to infringement." Yet
these aspects of respondents' services reflect  the new realities
of the Net as a whole. The World Wide  Web is largely a domain of
uncontrolled access and decentralized indexing. Respondent
Grokster's use of the  free software gnutella protocol is but one
implementation  among many of the new technical possibilities
opened up  by the maturation of the Internet. 

Petitioners' argument, quite properly rejected by the  Court of
Appeals, would actually apply to the majority of  the Net as it
exists today. Peer­to­peer systems have begun  to supplant the
traditional client­server model in terms of  actual volume of
traffic over the Internet. CacheLogic, a  firm that develops
tools for network traffic analysis for Internet service
providers, and CAIDA, a cooperative group  that develops Internet
traffic metrics, both recently published studies attributing 60%
to 70% of all Internet traffic  to peer­to­peer data exchange,
with the popular application Bit Torrent accounting for 53% of
all peer­to­peer traffic. 4 Bit Torrent is a peer­to­peer
application designed to  speed up and decentralize the
distribution of large data  files. It works by breaking the file
into small pieces, then  exploiting the upload capacity of each
individual user to  serve pieces of the file to other users while
the original  user is downloading the rest of the file from
elsewhere.  The list of users serving and downloading a given
file is  "tracked" on a website, where new users can go to begin 
the download/file­serving process in collaboration with  the
other participants. 

This "bucket­brigade" communal approach to distribution does more
than achieve efficient use of network technical resources. As
well as being used for a good deal  of infringing activity
sharing, among other things, copyrighted movies and television
programs produced by petitioners, Bit Torrent has found
widespread use by numerous groups seeking to distribute large
files on the Internet  for commercial and non­commercial
non­infringing purposes. The free software community has embraced
Bit Torrent as an efficient method of distributing software
installation CD images for non­proprietary operating systems 
like GNU/Linux and for other free software applications  that are
licensed on terms that permit free copying, modification and
redistribution. 5 BitTorrent provides a means  for these groups,
which are often funded out of the pockets of unpaid individual
users and developers, to spread  the costs of distributing the
files among the community,  to match demand with supply via
BitTorrent's automatic  matching of popularity with availability,
and to prevent  the possibility of a single server crash making a
given resource unavailable. 6 

Various coalitions of independent filmmakers have, for  similar
reasons, adopted Bit Torrent as a tool for distributing their
non­copyrighted or freely­licensed content. 7 In  many cases, the
films and footage would not otherwise  have been available to the
public due to the high costs  of hosting a video content server.
8 Similarly, many independent journalists have taken to posting
their video feeds  and political documentary footage on Bit
Torrent sites like  Torrentocracy, which host various political
documents of  public interest that might not otherwise find a
viable channel of distribution. 9 Educators have also made use of
BitTorrent to share multimedia language­learning resources  with
each other. 10 

C. THE COPYRIGHT ACT AND ASSOCIATED DOCTRINES  OF SECONDARY
LIABILITY DO NOT EMPOWER ONE  SMALL INDUSTRY TO BALANCE FOR
EVERYONE ELSE  THE SOCIAL INTERESTS AFFECTED BY WIDESPREAD 
CHANGES IN DISTRIBUTION TECHNOLOGY 

Petitioners advocate a reinterpretation of this Court's
established secondary copyright infringement doctrine that  would
allow copyright holders to reach and restrain the  implementation
of core technologies of copying and distribution under the guise
of protecting their statutory rights.  As the Court is well
aware, "a finding of contributory infringement [here is] the
functional equivalent of holding  that the disputed article is
within the monopoly granted  to the patentee." Sony, 464 U.S., at
441. Applied as petitioners would have it applied, contributory
infringement  doctrine would work an unprecedented and
unwarranted  extension of their monopolies. 

The exclusive rights granted to authors under 17 U.S.C.  § 106
are severely limited by both statute and the Constitution. As
this Court has repeatedly observed, the "limited  scope of the
copyright holder's statutory monopoly ... reflects a balance of
competing claims upon the public interest. ... But the ultimate
aim [of copyright] is ... the general  public good." Fogerty v.
Fantasy, Inc., 510 U.S. 517, 526--27  (1994) (quoting Twentieth
Century Music Corp. v. Aiken, 422  U.S. 151, 156 (1975)). This
Court has consistently held that  copyright holders do not have
unlimited power to control  all or even most uses and
distributions of their works. Extension of control beyond the
limits set by the distinction  between expressions and ideas, and
the principle of fair  use, is constitutionally prohibited, as
this Court has repeatedly taught. See Eldred v. Ashcroft, 537
U.S. 186, 190 (2003);  Feist Publications, Inc. v. Rural
Telephone Service Co., 499 U.S.  340, 349--50 (1991). 

Where the Constitution sets no limit on the scope of  the
monopoly to be granted, it empowers Congress to  make the basic
policy decisions that the grant of a statutory monopoly
inherently involves. This Court has rightly,  throughout the
history of the Republic, preserved the common law's tradition of
skepticism about statutory monopolies, and has wisely engaged in
strict construction of the  legislature's grant. So with respect
to technologies of redistribution, for example, this Court has
unfailingly held that  copyright owners' ability to dictate how
specific copies of  works are distributed is stringently
curtailed by the first  sale doctrine. As Justice Day noted
nearly one hundred  years ago, "[t]o add to the right of
exclusive sale the authority to control all future retail sales
... would give a  right not included in the terms of the
[copyright] statute."  Bobbs­Merrill Co. v. Straus, 210 U.S. 339,
351 (1908). 

Despite petitioners' apocalyptic rhetoric, this case follows a
familiar pattern in the history of copyright: incumbent
rights­holders have often objected to new technologies of
distribution that force innovation on the understandably
reluctant monopolist. As the Court of Appeals recognized, see
Metro­Goldwyn­Mayer Studios, Inc. v.  Grokster Ltd., 380 F.3d
1154, 1158, 1166 (CA9 2004), there is  no precedent in any of
these cases for holding the manufacturer of new technology or
distribution equipment secondarily liable for copyright
infringement. 

In White­Smith Music Publishing Co. v. Apollo Co., 209 U.S.  1
(1908), this Court held that the manufacturer of player  pianos
and perforated rolls, which together played copyrighted musical
compositions, did not infringe copyright.  In characterizing the
player piano and perforated rolls,  this Court quoted approvingly
from a First Circuit decision that had noted that "[the rolls]
are a mechanical invention made for the sole purpose of
performing tunes  mechanically upon a musical instrument."
White­Smith,  209 U.S., at 12. In subsequently holding that such
a "mechanical invention" did not fall within the ambit of
copyright law, this Court was mindful that questions concerning
mediation between core technologies and copyright  "properly
address themselves to the legislative, and not  to the judicial,
branch of the government." Id. at 18. 11 

Conversely, this Court's decision in Buck v. Jewell La Salle 
Realty Co., 283 U.S. 191 (1931), upholding a claim by the 
American Society of Composers, Authors, and Publishers  against a
hotel operator for re­broadcasting copyrighted  songs that it
received on its radio, conspicuously did not  involve any claims
against the radio receiver manufacturer. Nor is it conceivable
that this Court would have  held the manufacturer of either the
receiver or transmitting tower used in the infringing broadcasts
liable in light  of its decision in White­Smith. 

More recently, this Court held in Fortnightly Corp. v.  United
Artists Television, Inc., 392 U.S. 390 (1968), that a  community
antenna television (CATV) operator did not  infringe copyright by
carrying signals from local television  broadcasts. The Court
made clear that a CATV system was  no more than a technology of
distribution, which, while facilitating unlicensed use of
copyrighted material, was not  in itself liable as a result of
its contribution: "If it were,"  said this Court, "many people
who make large contributions to television viewing might find
themselves liable  for copyright infringement -- not only the
apartment house  owner who erects a common antenna for his
tenants, but  the shopkeeper who sells or rents television sets,
and, indeed, every television set manufacturer." Id. at 396.
Peerto­peer networking software, such as that distributed by 
respondents, is to the Internet what CATV systems were  to TV
broadcasting in the 1960s. Petitioners, as though  unmindful of
everything this Court has said in relation to  their past
attempts at overreaching, now seek to prohibit  yet another new
technology because it "contributes" to activities of which they
disapprove. 


II. Decisions Concerning Fundamental Matters of  Copyright
Policy, Particularly in Relation to New  Communications
Technologies, Should Be Made  Initially by Congress 

Copyright law since Thomas Edison has been about the  periodic
adjustment of social practices in light of rapid  technological
change. Whenever technology itself has  been regulated, it has
always been by Congress. See, for  example, Audio Home Recording
Act of 1992 (AHRA), 17  U.S.C. § 1001 et seq., 106 Stat. 4237.
"As the text of the Constitution makes plain, it is Congress that
has been assigned  the task of defining the scope of the limited
monopoly."  Sony, 464 U.S., at 429. Here, as in Sony itself, the
movie  industry has chosen to seek an expansion of its monopoly, 
not from the legislature, but in the courts. 

As this Court has said, "[s]ound policy, as well as history,
supports our consistent deference to Congress when  major
technological innovations alter the market for copyrighted
materials. Congress has the constitutional authority and
institutional capability to accommodate fully the  varied
permutations of competing interests that are inevitably
implicated by such new technology" Sony, 464  U.S., at 431. The
movie industry is all for plenary Congressional power once that
power has been exercised on its behalf; then, to be sure, we are
in the province of "judgments  [that] require balancing disparate
interests and making  predictions about future behavior. These
factually complex, predictive determinations are precisely the
sort that  legislatures are most competent to make." MPAA Br.
Amicus Curiae in Support of Resp. in Eldred v. Ashcroft, No. 
01­618, at 3. But as Congress has not shown heretofore any 
enthusiasm for allowing the movie studios to reconstruct  the
global Internet for their own financial benefit, despite  their
reasonably heavy monetary investment in individual  legislators,
this issue no longer, from their point of view,  requires complex
predictive determinations or the balancing of disparate
interests. 12 


CONCLUSION 

The Court of Appeals properly disposed of petitioners'  most
recent attempt to displace legislative judgment, by  refusing the
massive expansion in their monopoly that petitioners claim they
don't need to get from Congress. The  decision below should be
affirmed. 


Respectfully submitted. 

EBEN MOGLEN  Counsel of record  435 West 116th Street  New York,
NY 10027  (212) 854­8382  Counsel for Amici Curiae 


Footnotes

1 Counsel for both parties have consented to the filing of this
brief,  and those consents have been filed with the Clerk of this
Court. No  counsel for either party had any role in authoring
this brief, and no  person other than the amici and their counsel
made any monetary contribution to its preparation and submission.

2 See David Cohen, New P2P network funded by US government, NEW 
SCIENTIST, Oct. 1, 2002, available at
http://www.newscientist.com/  article.ns?id=dn2861; see also
Press Release, Massachusetts Institute of  Technology, MIT has
share in project for a more secure Internet (Sep.  25, 2002),
available at http://web.mit.edu/newsoffice/2002/connect.  html;
IRIS: Infrastructure for Resilient Internet Systems, at
http://iris.lcs.  mit.edu/. 

3 See Marc Rapport, Microsoft, IBM Develop P2P Technology,
PEERTOPEERCENTRAL.COM, Feb. 12, 2001, available at http://www. 
imakenews.com/p2pcentral/e article000015110.cfm. 

4 See Press Release, CacheLogic Announces New Internet Analysis 
Platform, Provides Exclusive Data on Worldwide P2P Usage (July
15,  2004), available at
http://www.cachelogic.com/news/pr040715.php;  see also Thomas
Karagiannis et al., Is P2P dying or just hiding?, December 2004,
available at http://www.caida.org/outreach/papers/2004/ 
p2p­dying/p2p­dying.pdf (presented at Globecom 2004). 

5 See The Linux Mirror Project at http://www.tlm­project.org/;
see  also Open Bits at http://www.open­bits.org/. 

6 See Andy Dornan, BitTorrent Jibes With Caching, NETWORK
MAGAZINE, February 1, 2005, available at
http://www.networkmagazine. 
com/shared/article/showArticle.jhtml?articleId=57701944. 

7 See My5Minutes at http://www.my5minutes.com/; see also Waxy  at
http://www.waxy.org/bt/. 

8 Being an oligopoly, petitioners are understandably shy about
indicating in their presentation to this Court that the
technology they are  seeking to eliminate as contributing to
infringement lowers the most  important barrier to entry faced by
their competitors. 

9 See Press Release, Matt Haughey, Creative Commons Applauds  the
Release of Political Film Footage on Peer­to­Peer (Sep. 15,
2004),  available at
http://creativecommons.org/press­releases/entry/4401;  see also
Outraged Moderates: Government Document Archive at
http://www.outragedmoderates.org/GovernmentDocumentLibrary.html
(2004); Chomsky Torrents at http://www.chomskytorrents.org/
(noncopyright­protected video and audio of Noam Chomsky's
lectures  and interviews); Torrentocracy at
http://torrentocracy.com/torrents/;  Blog Torrent at
http://www.blogtorrent.com/; Independent Media  Center at
http://www.indymedia.org. 

10 See Robert Godwin­Jones, Emerging technologies: messaging,
gaming, peer­to­peer sharing: language learning strategies &
tools for the millennial generation, LANGUAGE, LEARNING &
TECHNOLOGY, January  1, 2005. 

11 It is worth observing that no less an authority than John
Philip  Sousa concluded that failure to extend copyright to the
piano player  roll would eliminate the composition of music. See
John Philip Sousa,  The Menace of Mechanical Music, 8 APPLETON'S
MAGAZINE 278 (1906),  available at
http://www27.brinkster.com/phonozoic/menace.htm. 

12 An irony that seems to escape petitioners is that the
non­theatrical  market they claim respondents' computer software
inappropriately  threatens to deprive them of is the market that
came into existence as  a result of the videocassette recording
technology they were suing to  prohibit in Sony. Not only is
Congress better than the Court at making  predictive
determinations in this area: it appears that it is also better 
than petitioners themselves.