January 24, 2005

MGM v. Grokster pessimism

I'm going to emerge for a post on copyfighting, putting on my Eeyore suit: eeyorepic

"Write down your worries. And then depress your companions by reading them out loud."

Regarding the upcoming MGM v. Grokster case concerning the legal liability standards for Peer-To-Peer technology, I think the technology/freedom side is going to lose the case, and this is why:

The current law, the "Sony" standard concerning the copyright defense for product-makers of having substantial non-infringing use, was made under too many factors that I don't think auger well for the current outcome:

1) The original "Sony" Betamax decision was a 5-4 split. It doesn't get any closer.

2) The VCR didn't, in practice, threaten the business model of broadcasters. Commercials were viewed no matter what time program was seen.

3) It was a case of one established big corporation vs. another established big corporation. So the plaintiffs were socially equal to defendants.

In legalese, I suspect the geek phrase "disruptive technology" translates into "a basis for distinguishing the current situation from the existing precedent".

The sad thing is, I don't think the P2P freedom battle is intrinsically unwinnable. Only I can't see an ultraconservative Supreme Court ruling against "all the money in the world" and in favor of only a potential. If that potential were developed, maybe five years in the future, the scales might be different. But right now ... there's no (respectable) there there. It could be made, but it hasn't yet.

Oh well, nothing I can do ... "We can't all, and some of us don't. That's all there is to it.".

By Seth Finkelstein | posted in copyblight | on January 24, 2005 10:29 PM (Infothought permalink)
Seth Finkelstein's Infothought blog (Wikipedia, Google, censorware, and an inside view of net-politics) - Syndicate site (subscribe, RSS)

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Be of good cheer! The P2P freedom battle will be won, just not here. But I'm sure some Indian (or European or wherever) software companies will hire a few Americans to market their P2P innovations...

Posted by: Ravi at January 24, 2005 11:59 PM

The current scotus is not "ultraconservative." Though on economic issues they have tended toward the libertarian side. On governmental intrusion and social issues, the court is moderate liberal.

Posted by: Dead Parrot at January 25, 2005 04:33 AM

The great thing is that Grokster has already won. It is the record industry that is appealing.

Grokster also has shown that its P2P is not only capable of non-infringing uses but in fact is being used for such purposes.

How can the designers of the Grokster software prevent its user from using the p2p for arguably copyright infringing uses?

In other words whats the remedy the court will impose on Grokster if they do lose?

Posted by: Brent at January 25, 2005 09:57 PM

Good analysis as usual, Seth. I love the comment about how "disruptive technology" looks to the courts!

The main question I see is whether they can successfully craft a legal standard that defines P2P networking in such a way as to distinguish it from HTTP and other protocols. I agree with everyone else that the California bill along these lines fails badly.

Contrary to the somewhat nihilistic opinion which is widespread in online circles, I am confident that the court won't intentionally do anything that would substantially hamper the use and development of the internet. They're not morons, and they're not going to cut off their nose to spite their face. If they can't find a way to limit P2P without hurting legitimate usage, they'll back off, I think. This is the one factor that gives me hope that Grokster can win.

Posted by: Cypherpunk at January 27, 2005 06:18 PM