Sony’s failed war against Internet piracy may doom other copyright lawsuits
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The Roberts court has been one of the most damaging in history for many reasons, but one of them is the devaluation of precedent. The attorney cited in the story seems to believe that Supreme Court decisions set foundational precedent upon which law can be evaluated going forward, and that the Court's decisions and rational are consistent in cases where the circumstances are similar. This is the way it used to operate. The Roberts court has shown over and over that they are capricious and agenda driven, partisan, that their opinions are for sale, and that they are willing to set aside or enforce precedent as it suits their political agenda.
Because the Court is now a political actor, nothing it does can be taken as foundational any longer. If you brought a near-identical case to them, nobody can say how they would rule. The 'activist judges' that conservative types have been screaming about for decades are inside the house.
Because the Court is now a political actor, nothing it does can be taken as foundational any longer. If you brought a near-identical case to them, nobody can say how they would rule. The 'activist judges' that conservative types have been screaming about for decades are inside the house.
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It is precisely that the court is now overtly political that it has become invalid.
..and I'm not one prone to the hyperbolic or entertain sovereign citizen type thinking , however, this court has shown that it simply cannot be trusted to be impartial and thus, just.
While the saying is old at this point, it should be noted that this is a feature, not an unfortunate consequence.
The current powers simply do not want the United States to exist in it's current form and so virtually everything being done is to undermine, weaken and break her.
The very point IS a loss of faith in the judicial branch.
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Ten years ago, this ruling would be very different. I fear that the only reason the conservative justices jumped on this bandwagon is because their favorite corruption companies, Meta, X, etc., have all been accused of downloading from illegal libraries and don't want the add-on effects to trickle down into safe harboring.
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I wonder what else Sony & Friends would have wanted to smash if this went the other way. Free/open browsers and operating systems?
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Scary Devil Monastery
Ars Scholae Palatinae
They've actually tried to go after those.
Bear in mind, Sony BMG's "War on consumer rights" has often been very flimsily disguised as "anti-pirate action".
Never forget this is the company which began selling it's legitimate Music CDs with a bundled rootkit virus, tried to launch an otherwise fairly decent digital camera which was hardware-locked to accept only sony-branded memory chips rather than generics, and which issued their PS3 with the promise it could accept other operating systems only to then change their tune and remotely brick customers who had used their PS3 for exactly that purpose.
Sony is the sort of company which tries to sue GM because the built-in DVD rig is write-capable and which tries to sue smartphone manufacturer over ringtones considered "public performance".
I have little confidence in the current SCOTUS but this seems to me one of those two moments a day where a broken clock is right. Messengers should never be held responsible for the message carried.
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Scary Devil Monastery
Ars Scholae Palatinae
Fortunately that'll be a tougher sell.
There's a big difference between a messenger transmitting data blindly - the mailman delivering mail unopened, as it were - and a service provider which quite obviously creates product on demand.
Said product being CSAM and/or actionable libel.
I'm not sure whether, in the US, there's a legal boundary to advocating/gaslighting someone to commit suicide but if nothing else then "fraud" seems like it should be an open invite to start a case in.
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Scary Devil Monastery
Ars Scholae Palatinae
Sadly so.
I can recall good things coming out of MS, Apple, and even dog damn Oracle over the last three decades.
I have never seen anything emerging from Sony which wasn't straight off the bat intended to screw their legitimate customers.
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"But, with computers...."
The ruling actually makes sense. If your phone company found out that you were relaying trade secrets via a phone call, would it make sense that the phone company would be liable?
This was about copyright, so what about a more comparable situation - the admittedly unlikely case where someone was quoting significant portions of copyrighted material via the phone? Or, what if this was years ago and someone used a modem to transfer a movie using their phone services?
If I duplicate a movie DVD and snail mail them to customers, should the studios petition the U.S. postal service to stop servicing me?
ISPs need to be treated as common carriers (and regulated appropriately to that designation).
The ruling actually makes sense. If your phone company found out that you were relaying trade secrets via a phone call, would it make sense that the phone company would be liable?
This was about copyright, so what about a more comparable situation - the admittedly unlikely case where someone was quoting significant portions of copyrighted material via the phone? Or, what if this was years ago and someone used a modem to transfer a movie using their phone services?
If I duplicate a movie DVD and snail mail them to customers, should the studios petition the U.S. postal service to stop servicing me?
ISPs need to be treated as common carriers (and regulated appropriately to that designation).
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SUENY.
It's weird that they seem unable to learn from their mistakes.
Time and again their user-hostile proprietary/walled garden ploys fail in the long run.
It's ironic that their greed costs them literal piles of cash yet they keep at it.
I walked away many years ago and will never do business with them again.
It's weird that they seem unable to learn from their mistakes.
Time and again their user-hostile proprietary/walled garden ploys fail in the long run.
It's ironic that their greed costs them literal piles of cash yet they keep at it.
I walked away many years ago and will never do business with them again.
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Photocopiers faced a copyright challenge and survived on similar reasoning. Yes, you can use a copier to copy an article, book, or picture in violation of copyright. You can even use one to reproduce CSAM, but Xerox isn’t liable for that for the same reason: the copier is also useful for perfectly legal purposes. Eventually, 3D printers will probably need to run the same legal gauntlet.
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[ precedence ]
BTW, there are legal systems that rely less on precedence and more on the written law. Apparently, most of the world.
Or, the state of Louisiana.
The state of Louisiana has a legal system based more on French, German, and Spanish legal systems and less on British common law. This is also related to why Louisiana has "parishes" instead of "counties".
All that said, precedence is still presented at court, but instead of individual cases it's jurisprudence constante where multiple similar decisions can be presented as an argument but aren't really binding.
BTW, there are legal systems that rely less on precedence and more on the written law. Apparently, most of the world.
Or, the state of Louisiana.
The state of Louisiana has a legal system based more on French, German, and Spanish legal systems and less on British common law. This is also related to why Louisiana has "parishes" instead of "counties".
All that said, precedence is still presented at court, but instead of individual cases it's jurisprudence constante where multiple similar decisions can be presented as an argument but aren't really binding.
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As someone who isn't a US citizen, isn't the Supreme Court THE rule setter still? FYI, I'm going to write something insane and fucked up in my example question, for dramatic effect.
If a case was brought to the supreme court of the USA and the court ruled that pedophilia was now legal, because of insert court reasoning and supporting material. Isn't that kinda, final? No one can overrule them on law, right? Doesn't that mean anything they rule, will forever be a foundation of your laws moving forward?
Edit: Thank you @Tactical Finesse
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As a non US citizen reading this article, I'm always impressed at how much the courts in the US get to effectively shape the law as opposed to the legislative branch. Truly a lot of the matters discussed in this article should not be for courts, supreme or otherwise, to decide but for congress and the senate.
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The Supreme Court has the final say on what current law is. If Congress passed a law, that status quo could change tomorrow. A new SCOTUS could also flip precedent and change their mind (see Voting Rights Act reversal).
At a lower court level...20 years ago my state passed a badly worded civil liability law. The legislative intent was to cap personal injury liabilities, but make employer liability unlimited. Except my red-state unicameral can barely spell their own name--and because of bad punctuation got the two reversed. The matter almost instantly became a law suit because real people were impacted, that went to the courts--who ruled "hey dumb@$$ legislators, fix your law--because I cannot. I have to rule based on what your law says not what you wished it to mean". And they did.
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MilanKraft
Ars Tribunus Angusticlavius
First, thanks to Jon for the excellent, in-depth article covering a crucial legal issue that affects many people and companies in the digital economy. Articles like this are difficult to find anywhere else, including respectable outlets that cover the law and tech.
Second, while Meta may luck out and get the "provider" part of the infringement case against them dropped, the part where they intentionally trained their "personal profiler LLM" on a huge library of known, copyrighted books, should stick and they should be forced into a large settlement, just like Anthropic was for breaking the same law in the same way.
Google and OpenAI too, though I remain uncertain if actual class actions (on behalf of authors and publishers) have been brought against them yet. While the "dumb pipe utility" aspect of not holding ISPs responsible make sense in the original Sony case, what the social media or LLM companies are doing in terms of their direct theft of copyrighted works, would not make sense because they are creating the violations themselves, for their own purposes. The "well, it's a bunch of people on our platform doing bad things, not our fault" doesn't apply to this context (or shouldn't — I guess in the world we now inhabit I wouldn't be surprised if they were allowed to tap dance around that fact).
Second, while Meta may luck out and get the "provider" part of the infringement case against them dropped, the part where they intentionally trained their "personal profiler LLM" on a huge library of known, copyrighted books, should stick and they should be forced into a large settlement, just like Anthropic was for breaking the same law in the same way.
Google and OpenAI too, though I remain uncertain if actual class actions (on behalf of authors and publishers) have been brought against them yet. While the "dumb pipe utility" aspect of not holding ISPs responsible make sense in the original Sony case, what the social media or LLM companies are doing in terms of their direct theft of copyrighted works, would not make sense because they are creating the violations themselves, for their own purposes. The "well, it's a bunch of people on our platform doing bad things, not our fault" doesn't apply to this context (or shouldn't — I guess in the world we now inhabit I wouldn't be surprised if they were allowed to tap dance around that fact).
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The problem being even the largest of conceivable settlements that SCOTUS wouldn't invalidate--is a cost-of-doing-business fine to these tech companies. Their CEOs accumulate more money in a month than any corporate fine they could possibly face.
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Sony hoisted on their own petard vis-a-vis the Betamax case.
Amazing that scotus actually got this right and unanimously no less.
Amazing that scotus actually got this right and unanimously no less.
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IIRC the most relevant recent rulings are that training AI may fall under “Fair Use” because the process is transformative of the original work.
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Yeah, there is a big difference, but given the given how the courts seem to be practicing Calvinball as much as anything else, AI companies pointing to Cox and claiming "Well they got a free pass, we should get one too because reasons" seems like something that has a chance of succeeding.
I mean, it's sounder reasoning than trying to twist the law for someone writing numbers with seashells.
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Scary Devil Monastery
Ars Scholae Palatinae
Let's not forget the textbook case - the video cassette recorder which the copyright cult at the time described as being to the american public what the Boston Strangler was to a woman alone.
As it turned out they were a lot more transparent back then, with the case never really being about copyright but the fact that a VHS tape would allow the user to fast forward through commercial breaks.
Which is more or less always the point with any case launched by the copyright cult. The unlawful copying is only the window dressing, the real motive is always, invariably, that if the public can make copies the public can de-enshittify those copies - removing DRM, eliminating the need to buy a ton of garbage for every track or channel you want, skipping past ads, abolish the need to install rootkit client launchers and staying out of the attempted ecocystem eager to pester you to accept more bundled shit and subscriptions to go with that one franchise you actually wanted.
The copyright cult has tried to attack every form of reproduction or transmission technology itself for well over a century without signs of stopping so it would be weird if the 3D printer wasn't the next victim on the chopping block.
Fortunately, they keep losing.
https://falkvinge.net/2012/01/27/the-copyright-industry-a-century-of-deceit/
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No, but that's how it's being happily interpreted by said AI companies. And because the US justice department under profiteer-in-chief is happy for it to continue that way, any case will have its heels dragged into the mantle layer.
The court made the right decision here. They should have provided a lot more context to that decision though, but really it would be better if there was a congress that could actually do their job.
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It’s entertaining to see the idea here that SCOTUS is “now” political. It’s been political for at least a century, if not since its inception. Dred Scott, Plessy, the New Deal-era cases, Korematsu and many, many more illustrate that SCOTUS isn’t about what the law or the Constitution says, but about political expediency and what the court wants. This isn’t new.
If this works for services, it should work for goods.
If this works for services, it should work for goods.
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Scary Devil Monastery
Ars Scholae Palatinae
Well, there's some reason to believe SCOTUS will stay short of trying to exculpate the people creating CSAM, libel, and/or fraud as a service given the ideology most of the judges hold.
This is, after all, porn.
If there's anything you can rely on the GOP for it's their staunch resistance to anything considered sexual unless it takes place inside the confines of a marriage. I.e. they don't mind it if a young girl is sexually abused in reality as long as she's wearing a ring forced on her by her parents and her rapist but they will object to porn of any kind.
That said, one of the LLM bros trying to peddle the CSAM generators is Musk. He can certainly afford to "fringe benefit" the six republican SCOTUS judges to the point where they abandon all other principles, same as they always have when the price was right.
But I doubt the calvinball will fall out in favor of LLM's in this particular case short of Musk handing over a few billions in unmarked bills.
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Scary Devil Monastery
Ars Scholae Palatinae
You know how I can tell you aren't very well read on principles of law from that last sentence?
There's a difference between someone agreeing to carry a message/transmit data blindly as a mere conduit, and the operator who receives a request to create CSAM and produces such as ordered.
It's not a small difference either. Your argument was such a bad metaphor it is analogous with "If you can drink water you should be able to drink rock".
And no, SCOTUS is most certainly a lot more political simply because no other supreme court has ever even tried to declare the president a King, to name but one of the more astonishing rulings produced by this court.
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Even more basic than that: sex is something in which women have to submit to proper authority. That's why they don't mind having a rapist and sexual abuser in office as long as it's THEIR rapist and sexual abuser (thus someone having legitimate authority in their mind). Men's sexual misbehavior may be somewhat embarrassing, but any impropriety on the part of a woman is to be condemned and shamed in the loudest possible terms and used to tighten control on women ever further.
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Ugh! Having my morning coffee, click over to Ars and the first thing I see is a big picture of the disgusting pig Clarence Thomas. I almost did a spit take!
Put a warning on graphic pictures of dog shit, please!
Put a warning on graphic pictures of dog shit, please!
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My expectation is that the people using Grok to make CSAM are going to get roasted by SCOTUS. The company providing Grok to those people to make CSAM with is going to skate for reasons similar to what was just applied to Cox.
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Good. I wish everyone on Sony’s side to always drench their sleeves when washing their hands.
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A few things.
- The Constitution, is an extremely thin document. Even by 18th century standards. Very little is covered there. The Constitution's take on digital privacy and piracy is: "digital WHAT?", because digital anything didn't exist in the late 1700s.
- The very act of judicial constitutional review, where courts can question legislation passed by The People, a bedrock of American process....is NOT IN the Constitution. Seriously. Go and read Article 3. It was invented by the Marshall Court out of thin air in Marbury v. Madison....which HOT TAKE ALERT: isn't a bad thing to have invented.
- Read the Dredd Scott v. Sandford decision. Seriously. It is pretty short and very readable--I read it in high school. Justice Taney wrote it. It is exactly the opposite of what you're using it as an example of. Taney was rather boxed in--and ruled on what the awful status quo law was, not what abolitionists wanted. Which, from our hindsight 20/20 viewpoint sucks ethically and morally, but that was the 19th century law as written. Taney wasn't evil--he was pretty boxed in, fun fact Taney also authored the decision that gave the USA public utilities like highways and bridges and power and water companies...because that also wasn't a thing in the Constitution either..
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MilanKraft
Ars Tribunus Angusticlavius
While I would not expect any "corporate fine" resulting from a general suit to impair these bad actors, for class-action suits where companies are paying out to thousands of claimants, it's at least possible to make it hurt some.
For example, with most class action suits against large public companies, claimants are lucky if they get $50 out of a given settlement, but with Anthropic's settlement (finalization of amount TBD in the next week or two), authors should receive something on the order of $2000-3000 per work stolen / found in the scummy book database that was used by all of these companies (AFAIK).
For a privately owned company at least (Anthropic / OpenAI), that could smart and hopefully inform their future business decisions (avoid choices that harm the public or undermine the system of respecting people's copyrighted works). And, if each settlement provides precedent for the ones that follow — why shouldn't Meta, Google, or others be treated exactly the same way Anthropic was, if they committed the exact same violation in the same time frame? — there can at leat be a domino effect as well.
At this point, this is about the best type of "accountability" we can hope for, until the Madness Administration is gone and Congress is not 50% boot-licking, democracy subverting morons.
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True.
My go to example of corporate class action penalties is Exxon-Valdez. For all the damage that mess caused--the class action settlement was fought in courts for 25 years. And whittled down from $2.5bn in late 80s money to $500 million by the final judgement in 2008 to the point of "meh"; Exxon's CEO in 2008 was paid $24m alone just by himself.. And the money throughput of most of these tech-bro companies makes Exxon look like a newly hatched minnow compared to blue whales.
Which...the problem for any class-action against the AI companies is simple. How do you value stealing an author's lifetime wok over its entire revenue-stream lifetime? Incredibly few authors actually make money writing just in terms of time-input versus paycheck. And even being reasonable and using the best-case revenue model, a class action would be a speed bump to a megacorp like Google or Microsoft....OpenAI and Anthropic are a little different, because they are companies with only one revenue stream--as opposed to MS and Google that have not only a ton of infra-services revenue but also advertising and web-SaaS income.
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In theory, this court decision is based on the laws that have been put into place by the legislative branch, within the confines of the US Constitution. The court's job is nothing more than pulling all of the various laws together, and figuring out the meaning of how they all work together. If people don't like that outcome, then they have to return to the legislative branch to get them to change things.
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XSportSeeker
Ars Scholae Palatinae
There's just too much to analyze from a single court decision there, some of which are good, some of which are pretty bad.
Yes, utility companies shouldn't be held liable for criminals using their services to commit crime. This should've been obvious years ago when the whole Net Neutrality discussion came about. It's what we've been saying all along, and what should've stuck in principle.
I'd also remind people that it's this administration in the past and currently that opposed and went against this very concept, with the likes of Ajit Pai and Carr being notoriously against it. I will further remind people that this very same Supreme Court overturned Chevron deference removing FCC authority to re-classify ISPs as Title II services, effectively ending the possibility of Internet being classified the same as common utility in the federal level.
So, what really happened there for this turn. The article well explains it, with the entire AI section. Basically, SCOTUS and administration are turning coat on this matter because they are now being paid more to do the IA mafia's bidding, rather than the ISP mafia bidding. This has nothing to do with Sony failed war, this has to do with AI winning war.
The matter of copyright infringement distributed responsibility pays less than the matter of AI being allowed to mass infringe on the copyrights of everyone.
Sure, one can always celebrate this as a loss for Sony and the lobbying machine for excessive, often fictional and fantastical power that was given to these huge corporations on the ability to control, censor and punish what should be common utility companies for somehow aiding and abetting in criminal pursuits. They have used and abused their power and money to bend and turn the entire justice system in their favor since they went mainstream - with a huge help of the people they are trying to criminalize now.
But the reason why it happened is not revenge, justice or a sudden clarity of the courts. It happened because a bigger fish came to tread on the same waters. This isn't a course correction, it's just a next level step on the same direction. Sony lost not because it abused it's power, it lost because corporations involved in AI are more powerful than it.
And all of this added, is actually a loss for the public in general. Because it's clear evidence that when the time comes for Supreme Court to decide on copyright infringement of AI companies, it means it'll side with them rather than any opponent small or big.
This also comes with all the ill fated crap that has become normalized into this whole thing. The fact that we're talking about huge corporations with quasi or de facto monopoly status, for instance, to the point they can spend ludicrous amounts of money and time into these legal battles, which corrupts courts, which corrupts the justice system, which corrupts governments and regulatory bodies. The fact that Sony lost there is a band-aid in a huge gaping wound, that was put there after the doctor was only making the wound bigger, not because anyone cares about the patient, but because some bigger band-aid selling corporation thought it would advantage them to do so.
Yes, utility companies shouldn't be held liable for criminals using their services to commit crime. This should've been obvious years ago when the whole Net Neutrality discussion came about. It's what we've been saying all along, and what should've stuck in principle.
I'd also remind people that it's this administration in the past and currently that opposed and went against this very concept, with the likes of Ajit Pai and Carr being notoriously against it. I will further remind people that this very same Supreme Court overturned Chevron deference removing FCC authority to re-classify ISPs as Title II services, effectively ending the possibility of Internet being classified the same as common utility in the federal level.
So, what really happened there for this turn. The article well explains it, with the entire AI section. Basically, SCOTUS and administration are turning coat on this matter because they are now being paid more to do the IA mafia's bidding, rather than the ISP mafia bidding. This has nothing to do with Sony failed war, this has to do with AI winning war.
The matter of copyright infringement distributed responsibility pays less than the matter of AI being allowed to mass infringe on the copyrights of everyone.
Sure, one can always celebrate this as a loss for Sony and the lobbying machine for excessive, often fictional and fantastical power that was given to these huge corporations on the ability to control, censor and punish what should be common utility companies for somehow aiding and abetting in criminal pursuits. They have used and abused their power and money to bend and turn the entire justice system in their favor since they went mainstream - with a huge help of the people they are trying to criminalize now.
But the reason why it happened is not revenge, justice or a sudden clarity of the courts. It happened because a bigger fish came to tread on the same waters. This isn't a course correction, it's just a next level step on the same direction. Sony lost not because it abused it's power, it lost because corporations involved in AI are more powerful than it.
And all of this added, is actually a loss for the public in general. Because it's clear evidence that when the time comes for Supreme Court to decide on copyright infringement of AI companies, it means it'll side with them rather than any opponent small or big.
This also comes with all the ill fated crap that has become normalized into this whole thing. The fact that we're talking about huge corporations with quasi or de facto monopoly status, for instance, to the point they can spend ludicrous amounts of money and time into these legal battles, which corrupts courts, which corrupts the justice system, which corrupts governments and regulatory bodies. The fact that Sony lost there is a band-aid in a huge gaping wound, that was put there after the doctor was only making the wound bigger, not because anyone cares about the patient, but because some bigger band-aid selling corporation thought it would advantage them to do so.
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We used to live in the empire of the engineers, now we live in the Land of the Lawyers and their method of earning gigantic fees is to go for the big bucks. Yes, an individual violated copyright, but that would be pennies -- go for the billion dollar carrier of the information and that 35% fee has some serious zeros behind it!! Would the lower court judgement financially hurt Cox Communications (or any other provider) but who cares, I make gazillions off the judgement.
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