every cloud has a silver lining, i suppose

Phil Gengler
2003-07-03 04:53:22

It's been a rather depressing week, in terms of some of the losses that have come up. Decisions came up in the Aimster/Madster case, and after several months of waiting, Adam Kosmin's small-claims case against Toshiba was finally heard and decided.

On Monday evening, I attended the hearing of Adam Kosmin's case against Toshiba. I've talked about the case before, but the quick summary goes something like this. Adam purchased a laptop from Toshiba that came with both Windows XP Pro and Windows 2000 Pro preinstalled. Having no intention of ever using these operating systems, and with the knowledge that the Microsoft Windows EULA contained a provision governing obtaining a refund for an unused, uncopied operating system, attempted to have the cost of the operating systems refunded by Toshiba. He was told they would not do this, and then filed in small claims court, seeking the cost of the operating systems, interest since August 2002, and court costs. After being pushed back 4 times, the case was heard before Judge David Elliot. Adam was representing himself, against a lawyer from Toshiba. Adam did a very good job of explaining his side, and had a serious chance of victory, until the judge ruled that the copy of the Microsoft EULA Adam sought to enter into evidence was hearsay and therefore inadmissible.

The final outcome of the case was that it was dismissed without prejudice. This means that Adam is still free to pursue the case on the EULA grounds, something he has not yet decided if he will do.

Also on Monday, the 7th Circuit Court of Appeals delivered it's opinion in the Madster case. The court ruled that Madster was liable for the content shared via it's network, despite the fact that the actual content was obscured. Calling this "willful blindness", the court upheld the ruling of a lower court, and Madster will remain closed for the foreseeable future. One benefit of the ruling was that the court did approve the use of Madster's analogy between it's situation and the ruling in the Betamax case, which means that if a device or network has substantial non-infringing uses, this takes precedence over any possible infringing uses of the device.

Also in Monday news (busy day, it seems), the EU parliament has chosen to put off a vote on controversial new software patent legislation until September. Supporters of the legislation, which is mainly large companies, had pushed for a rushed vote on the legislation, and almost received it.

The proposed legislation would give members of the EU a patent system to the broken US system. Software patents are a particularly controversial area of patent law, with some likening software patents to "allowing a monopoly on the ideas in novels." I certainly hope that when the time comes to vote on this, the EU parliament has the sense to vote for what's best, instead of what benefits large companies the most.

In some more good news, a pro-P2P lobby is emerging in both the US and Europe. Hopefully, these groups will provide sensibility and logic to when the RIAA and MPAA cry foul over P2P, without actually showing any way in which it harms them. This is something that many (including myself) have long felt was needed, and to see it finally happening makes the Internet future look a little brighter.

Speaking of the RIAA, it may soon move from 5 members to 4. Not because one's dropping out of the organization, but because AOL Time Warner and Bertelsmann are in talks of merging the Warner Music and BMG Music labels. If this merger should take place, it's quite conceivable that other RIAA members might also consider mergers. While it's apparent that the groups of the RIAA are acting in unison on most things, moving closer towards a single company dominating the music industry is not an appealing idea. I urge everyone to support independent music instead of the labels composing the RIAA.