Fear-to-Fear?
I’m already getting harassed for not having commented on the denouement of Grokster vs. MGM. I was determined, for a change, to post from a position of uninformed legal hackery instead of my usual total ignorance, so I took the time to read up on the case’s conclusion. Not the actual judges’ opinions, mind you. Who has time for that? But I did read a crackpot Salon article and more level-headed New York Times take on the decision, as well as some other bits and bobs from around the web.
I’m tempted simply to point back to my original post on the case’s oral arguments. What can I add when I nailed the outcome way back in March? For those who want analysis from someone who actually knows what he’s talking about, there’s also this excellent summary by Fred von Lohmann, the EFF’s attorney-in-chief.
I will say this. First of all, from the perspective of someone who is trying to revolutionize the technical landscape of P2P-istan, I’m totally head-over-heels in love with the decision. I find it truly tragic that the Creative Commons types, for whom I have great sympathy, have chosen to align themselves with slimeballs like Grokster and Streamcast. I’ve seen any number of extreme analogies mooted to show what a dangerously slippery slope the Supremes have wandered onto, the silliest of which is the Google brain fart in the aforementioned Salon piece. But the fact remains that the defendants had built a business around actively encouraging people to violate copyright and financed it by installing all manner of junk on their users’ computers without their knowledge or consent. They deserve to be censured.
The main argument against the decision is that the Court did not provide sufficient guidance as to what constitutes “inducement”. This could theoretically allow the media companies to bully small software vendors into submission with the mere threat of legal action. But the flip side of this is the pernicious effect that the piracy-fueled file sharing vendors have on the AllPeers of the world, small companies who are actually willing to innovate in order to find a legal model for digital content delivery. This doesn’t mean that I’m a fan of big media. Don’t even get me started. But — call me crazy — I do think that artists deserve to be compensated for their creative output. So should we be concerned about potential abuse of this ruling? Perhaps. But at the end of the day, this was the right decision to take with respect to the specific circumstances of the case. The U.S. judicial system did The Right Thing, which is encouraging. No, this won’t be the last word on this issue, but if you aren’t willing to put your faith in a judiciary that has done a good job so far of navigating these treacherous waters, let me humbly suggest that you go live in a log cabin in New Zealand. Or something.
Not that this decision is of any benefit whatsoever to the media companies. Does anyone even use Grokster and Streamcast anymore? If so, perhaps this decision will prompt them to seek out one of the myriad of far better ways to get copyrighted music for free, if that’s their thing. It’s satisfying to see spyware-propagating, innovation-averse, profiteering marketing drones get their comeuppance, but the real question is this: will the media companies eventually do something to address the actual issues raised by ubiquitous digital connectivity, or will they continue to take futile legal action against everyone in sight as they slowly fade into irrelevance?
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How would you classify Bertelsmann’s efforts? Irrelevant or in tune? My guess is that even if their platform doesn’t take off, at least it will demonstrate directions media companies could go toward.
Comment by Julia — 7/1/2005 @ 8:56 am
Well, relevant to the extent that the media companies are clearly embarking on a two-pronged strategy: eliminate the competition through legal action and propose “walled-garden” alternatives that preserve their market power.
I don’t think this will work, however, because the popularity of P2P file sharing has more to do with freedom and control than price. As long as companies like Bertelsmann and Intel try to lock customers in, they will flock to alternatives, legal or not, that let them do what they want with their media instead of tying them to specific vendors and devices.
Comment by Matt — 7/2/2005 @ 1:58 pm