MGM v. Grokster pessimism

[Reposting my MGM vs. Grokster pessimism post of a while back, since March 29 is the trial of the Grokster case]

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

"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.".

Seth Finkelstein's Infothought blog (Wikipedia, Google, censorware, and an inside view of net-politics) - Syndicate site (subscribe, RSS)