Double Barrel

According to the Supreme Court (Grokster case), “software companies can be held liable for copyright infringement when individuals use their technology to download songs and movies illegally.” But the logic is inverted when applied to the gun industry. According to White House spokesman Scott McClellan, “The president believes that the manufacturer of a legal product should not be held liable for the criminal misuse of that product by others.”

So the corporation is liable for criminal uses of a product by its customers when that product involves copyright. But the corporation is not liable for criminal uses of a product by a customer when that product is a firearm (and the stakes could be human lives).

Daily Kos: What’s the common logic holding these disparate concepts together? Massive corporate special interest money. Welcome to your government of the corporations, by the corporations, and for the corporations, where a pirated copy of “Hollywood Homicide” is bigger threat than an actual Hollywood homicide.

Not making a point here about copyright or gun laws per se’, but about hypocrisy, messed up priorities, inconsistent logic and double standards.

via Weblogsksy

Music: The Fiery Furnaces :: Leaky Tunnel

19 Replies to “Double Barrel”

  1. The Grokster ruling didn’t actually say that, though… It said that Grokster could be held liable for copyright infringement because it actively promoted it’s software as a method of copyright infringement….

    They advertised it as a great way to get music for free, and that was their downfall.

  2. Sean, you’re correct that the main (and most interesting) conclusion of the Grokster case was about inducement to infringe, but it’s still true that The Court is holding Grokster responsible for the illegal acts of its customers while using a technology-neutral tool.

  3. The other important difference is that your right to keep and bear arms is guaranteed by the second amendment of the constitution. You have no such guarantees to use software, the network, etc. You probably should, but you don’t. The legal environment for the two questions is radically different as a result.

    But I agree with Sean, the ruling said that a software company can be held responsible if it induces to infringe. Any software company dumb enough to promote itself on that basis deserves what it gets.

    -Jim

  4. Salient bits of the suprime court ruling against grokster and streamcast follow. The whole text is at http://i.i.com.com/cnwk.1d/pdf/ne/2005/grokster/04-480o.pdf Reading the thing I found it interesting and comforting to realize that the court comprehends the issue they have in hand accurately, and seems pretty savvy about the technology involved.

    Grokster and StreamCast are not, however, merely passive recipients of information about infringing use. The record is replete with evidence that from the moment Grokster and Streamcast began to distribute their free software, each one clearly voiced the objective that recipients use it to download copyrighted works, and each took active steps to encourage infringement.
    […] the chief technology officer of the company averred that “[t]he goal is to get in trouble with the law and get sued. It’s the best way to get in the new[s].”
    […] Streamcast’s executives monitored hte number of songs by certain commercial artists available on their networks and an internal communication indicates they aimed to have a larger number of copyrighted songs on their networks than other file-sharing networks.
    […] Morpheus in fact allowed users to search specifically for “Top 40” songs[…] which are inevitably copyrighted.
    […]The more artistic protection is favored, the more technological innovation may be discouraged; the administration of copyright law is an exercise in managing the trade-off
    […] In sum, this case is significantly different from Sony [… which… ] dealt with a claim of liability based solely on distributing a product with alternative lawful and unlawful uses, with knowledge that some users would follow the unlawful course. The case struck a balance between the interests of protection and innovation by holding that the product’s capability of substantial lawful employment should bar the imputation of fault and consequent secondary liability for the unlawful acts of others. MGM’s evidence in this case most obviously addresses a different basis of liability for distributing a product open to alternative uses. Here, evidence of the distributors’ words and deeds going beyond distribution as such shows a purpose to cause and profit from third-party acts of copyright infringement. If liability for inducing infringement is ultimately found, it will not be on the basis of presuming or imputing fault, but from inferring a patently illegal objective from statements and actions showing what that objective was.

  5. I think we’re all agreed about what the Supreme Court said and what the gist of its ruling was/is. It focused on active inducement to infringement, but it neverthless *still* has the effect of penalizing the company for wrongdoing of users of its product. Even if that wrongdoing is actively induced.

    You could make a similar argument about the gun industry – that selling a gun is an inducement to use it to maim or kill.

    The other important difference is that your right to keep and bear arms is guaranteed by the second amendment of the constitution.

    At the risk of touching off a gun control thread, I just have to say that one would have to be a member of a militia in order to excercise the 2nd amendment, since the 2nd guarantees a collective right to armament for purposes of national defense, not a right of individuals to own guns. N’est pas?

  6. At the risk of touching off a gun control thread, I just have to say that one would have to be a member of a militia in order to excercise the 2nd amendment, since the 2nd guarantees a collective right to armament for purposes of national defense, not a right of individuals to own guns. N’est pas?

    No.

    “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

    The right of the people. Not the right of the militia. It’s like saying, “Since the authorship of literature is necessary to the erudition of society, the right of the people to bear pens shall not be infringed.” Would you read this as “everyone should have the right to bear pens” or “only professional authors should have the right to bear pens?”

    The militia is necessary, therefore all the people have the right to bear arms so that said militias may be formed.

    Oh, and it’s “n’est-ce pas.” :)

  7. The militia is necessary, therefore all the people have the right to bear arms so that said militias may be formed.

    I don’t see the connection. No one needs a firearm to join the army — the army issues them to you. Of course that situation was quite different in the 1700s. It seems that that section of the Constitution was written in an environment where people needed to have their own firearms in order to join up. Either that or they had the option of bringing their own firearms into the militia. But as written, it certainly doesn’t apply now the way it did then.

    I’m no consitutional scholar, but it seems that the point of the 2nd is to guarantee the ability to form militias. Militias are no longer necessary since we have a federally run military system, which issues guns to its members. We can’t take the 2nd at face value since it no longer applies to our society, so we have to look for its intention. And I somehow don’t think the Founders would have liked the idea of citizens running around with guns. :)

  8. Uhhh ….

    The militia exists to *fight* the standing army. That’s the point.

    There was a federally run military system in 1775. It was the British military, and George III was using it to enforce his will on the people. The only way to fight this domestic force of occupation was by private citizens being able to take up arms against them.

    And when people joined the Continental Army they were issued weapons by the Continental Army. Just like today. And yet the Framers kept the wording as it is. Why do you think that is?

    If the only way for the people to get guns is to have them issued to them by the government, and the government is tyrannical, you end up in Maoist China. Or fascist Germany. Or pre-revolutionary English colonies.

  9. There was a federally run military system in 1775. It was the British military, and George III was using it to enforce his will on the people. The only way to fight this domestic force of occupation was by private citizens being able to take up arms against them.

    Ah, interesting. That makes the wording of the 2nd more clear, but it still makes the 2nd look pretty irrelevant in the modern world.

    And when people joined the Continental Army they were issued weapons by the Continental Army. Just like today. And yet the Framers kept the wording as it is. Why do you think that is?

    I don’t know — now it’s making less sense. Why would they give them the right to bear arms if the Continental Army was already issuing them guns? Doesn’t make any sense.

    If the only way for the people to get guns is to have them issued to them by the government, and the government is tyrannical, you end up in Maoist China. Or fascist Germany. Or pre-revolutionary English colonies.

    So what we have then is a false security blanket, where some people A) think that the U.S. government could become so tyrannical that we would have to physically protect ourselves from it and B) that if that did happen, our puny guns could actually protect us from it? And the cost of this false sense of security from the tyranny of our own government is a society with the highest per-capita gun death rate in the world, where people think it’s *normal and OK* for citizens to be walking around with guns (or to have guns stashed in their homes). Doesn’t make a whole lot of sense to me…

  10. I don’t know — now it’s making less sense. Why would they give them the right to bear arms if the Continental Army was already issuing them guns? Doesn’t make any sense.

    Because the Army and the militia are not the same thing.

    The government forms the army to protect the country from outside influence. The people form the militias to protect themselves from the government and its tool, the Army.

    So what we have then is a false security blanket, where some people A) think that the U.S. government could become so tyrannical that we would have to physically protect ourselves from it

    Why do you think the southern states seceded in 1861? It was not because they were thrilled with the way the Federal government was treating them. I’m not advocating states rights, slavery, or the Southern view of trade. I’m just saying that the people having serious grievances with their government that leads to armed conflict is not as unheard of in this nation’s history as you suggest.

    It happened before, it can happen again.

    B) that if that did happen, our puny guns could actually protect us from it?

    So we just give up? Bullshit. Right now we’d have a tough battle in front of us. Give up our ability to use force of arms as a redress of grievances and the government can act knowing there is NO battle in front of it.

    The average 18 year old in the Army would have no problem following an order to destroy a newspaper office that published “anti-Bush rhetoric.” They would, however, think twice when staring down an armed group intent on preservation of the First Amendment. And think the same thing could be achieved with a peaceful protest? Kent State. No *way* those National Guardsmen would have fired into an armed crowd.

    And the cost of this false sense of security from the tyranny of our own government is a society with the highest per-capita gun death rate in the world, where people think it’s *normal and OK* for citizens to be walking around with guns (or to have guns stashed in their homes). Doesn’t make a whole lot of sense to me…

    And the rate of poisoning deaths in Britian is several orders of magnitude more than it is here. If people truly want to kill each other, they’ll find a way to do it, Scot.

    Passing laws banning guns means that law-abiding people give up their guns. This ends crime …. how? Criminals, by definition, do not follow the law. If gun control is such a panacea, why does Washington DC, the city with the strictest gun control, have the highest gun murder rates? Because the only people that disarm when law tells them to are the lawful.

    You do not start tearing away at a document which has sustained the most libertine, heterogenous, and stable nation unless you know damned well what you’re doing. I don’t, and frankly (and no offense), neither do you.

  11. Because the Army and the militia are not the same thing.

    I guess I misunderstood you above, when you said: The only way to fight this domestic force of occupation was by private citizens being able to take up arms against them. And when people joined the Continental Army they were issued weapons by the Continental Army. I thought you meant that the Continental Army *was* the name of the militia. Now I understand what you mean.

    It happened before, it can happen again.

    I confess there have been times when I have wished the Bay Area could become its own country :)

    The average 18 year old in the Army would have no problem following an order to destroy a newspaper office that published “anti-Bush rhetoric.” They would, however, think twice when staring down an armed group intent on preservation of the First Amendment.

    I think that if the U.S. government wanted to squash the people or some splinter group in any serious way, they would do it with tanks, poisons, sonic blasts, etc. not 18 year old armed soldiers. They would do it with shock and awe. A flock of armed citizens would be a mosquito to them, a small annoyance.

    If people truly want to kill each other, they’ll find a way to do it, Scot.

    No argument there, but when there’s a loaded weapon close at hand, it makes it easier to do spontaneously (or accidentally). Poison homicides in Britain are premeditated, not spontaneous or born of sudden rage. They therefore occur at a fraction of the rate.

    why does Washington DC, the city with the strictest gun control, have the highest gun murder rates?

    Umm.. because guns are already in the hands of outlaws? If it had never been so easy to obtain a gun, the murder rate in D.C. would be a fraction of what it is today. Getting guns out of their hands is, of course, an immense problem. But you can’t get guns out of the hands of outlaws if you don’t have a law to start with.

    You do not start tearing away at a document…

    Certainly we have the right to debate the merits of the 2nd without having to be constitutional scholars or judges. Our status as lay people doesn’t make our debate pointless.

    The Supreme Court has stayed away from revisiting the 2nd for decades, because they know it would be the mother of all battles (hell, I wouldn’t be surprised if changing it sparked a civil war). But I sure would like to know whether they would be able to support modern continuance of the 2nd given how the world has changed. I have a strong suspicion it would be overturned by honest judges, if given a chance. But we’ll probably never know – the button is too hot.

  12. Go watch the Bullshit! episode on gun control where a gang leader talks about how much he likes gun control. It makes people defenseless sheep.

    The law you propose immediately makes defenseless sheep and wolves. No shepherd dogs left.

    The genie is out of the bottle. No law is going to put it back. Ask a heroin dealer.

  13. OK, I finally watched the Bullshit episode, and I gotta say, they were more even-handed with it than I expected. Not shy of presenting even the scariest facts on either side of the debate (a gun in a house is 43x more likely to kill a loved one than an intruder!).

    I acknowledge that this is a hard debate, that there are lots of good arguments either way. I also just read through a few sites listings pros and cons in the gun control debate, and learned a lot. It’s a fascinating topic.

    On one hand, we have our visions for “the perfect world.” In mine, no civilians have guns, and we’re not stuck in an arms race with the criminals, feeling like we need guns to protect us because they already got theirs. But it’s too late for that. Short of martial law and mass home invasions, we’re not going to get guns out of criminal hands. Guns are a fact of life. The question is how best to deal with that reality. Do we take a pacifist stance and maintain that you can’t improve on a violence-prone situation by adopting the tools of the enemy, or do we try to outnumber them (more white hats with guns than black hats with guns). That seems to the argument of a lot of gun ownership advocates.

    To me, this feels a bit like resignation, going down without a fight. We can’t change our society, so we’ll deal with the situation with the threat of force. I don’t like this. But I acknowledge that the alternative (removing guns from society, amending the Constitution, and starting over) would be virtually impossible.

    I’ll never own a gun, at least not one intended for self-protection. The thought of having a gun in my house or on my person makes me feel sick to the stomach, violates everything I hold dear. And I’ll still strongly support strict gun control measures (without them, the 2nd amendment also guarantees the right of citizens to own bazookas and SCUD missiles; in 20 years it’ll be guaranteeing the right of people to own laser pens capable of cutting the heads off everyone in a crowd with a single flick of the wrist). But I accept reality. If guns can’t be removed from society, then it makes sense to have more good guys with guns than bad. It’s a bitter pill. I’ve just swallowed it.

  14. It’s a bitter pill. I’ve just swallowed it.

    Good to hear.

    And I support your decision NOT to own a gun. Absolutely. I am equally horrified by people trying to take my gun as I am by people trying to force them into the hands of people that do not want them. Ownership is a choice. Period.

    Just know that when that prowler is cruising your street looking for a home to invade, (s)he has to wonder if that’s you on the other side of the door, or me…

    That’s why DC has the high crime rate it does. Not because guns are legal elsewhere. Why are the statistics so much lower across the Potomac in Virginia? In Virgina and Maryland the criminals are not shooting fish in a barrel.

    And that’s the point. 10% of us owning guns makes the other 80% safer from the 10% of us that wish to do harm.

    I’m really glad you awoke to the reality of the situation. As ugly as I agree it is. Violence is never the solution, only the worst means to arrive at one.

  15. Note that there are also statistics showing the reverse. For example:

    “In 1994 Governor Weld OF Massachusetts signed a law that banned handgun possession for people under 21 in Boston. a year after Weld signed the law, Boston, riddled with youth murders in the early 1990s, began a 2 1/2-year spell without a gun murder of a child under 17.”

    http://www.youdebate.com/DEBATES/guncontrol.HTM

    So gun control *can* work. I suspect that the forces that contribute to it working or not working are many and complex, and it’s never as simple as having or not having a particluar law.

  16. I cannot find any other references to this legislation other than on the page you cite. While it might be that my Google-fu is not up to snuff after 1 cup of coffee, it may also be this story is apocryphal. Got another source?

  17. I can’t find another reference to it online either. Which is surprising, since I found that site to very even-handed and useful. More revealing to me is that Googling terms like “evidence gun control laws reduce crime” turns up page after page of results indicating the opposite. It’s very hard to find evidence to the contrary online. Whether this merely reflects the passion of pro-gun advocates online or reality or both, I’m not sure, but it is an illuminating excercise.

    One interesting thing I did find was a table of works concluding that conceal laws do or do not reduce violent crime:

    http://timlambert.org/2003/07/0728/

    That table indicates that there is more research showing that the ability to carry does not reduce crime than does. And the articles listed there are all linked. And yet it’s tough to find that kind of evidence with straight Google searches.

  18. As Suzanna Hupp said in that Bullshit! episode, “One thing that no one can argue with is the fact that it sure would have changed the odds.”

    It’s an arms race. Whether or not we can prove the race is to the swiftest, to me, does not matter. I just know that I don’t want only the bad guys in the race.

    Yay, humanity. *sigh*

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