Archive | June, 2005

Following up on yesterday’s remarks, today I see that Ross Rubin’s Switched On column at Engadget also focuses on the specifics of the Court’s Grokster decision, rather than taking it as a wholesale attack on mp3 technologies:

The upshot is that, even though most consumer electronics products should be in the clear, the Grokster case will likely remind manufacturers to play it safe by ensuring that the advertising and primary appeal around their products is not designed around fostering infringement.

However, one downside noted by Rubin is that the Court did cite Grokster’s failure to attempt to stop infringing uses as a contributing factor in its decision. Therefore he thinks we’ll see more devices that specifically limit or block sharing — something that the iPod, for instance, already does.

For his final point, Rubin looks to Gigi Sohn of Public Knowledge, noting that “this was a case about business models, not technology.” Indeed, that’s part of the point I was trying to make yesterday.

And so, on the claim that the Grokster decision will inhibit innovation, I have to ask, “what kind of innovation?” With the contemporary techno-fetish of the amorphously defined concept of “innovation,” we have to ask what it means to inhibit innovation.

In this case, the kind of innovation that is directly blocked is corporate profit derived from creating a product marketed to share music in contravention to existing laws.

Regardless of what I think about the validity of those laws, I am also critical of corporate profit, period. I don’t cry when Enron is busted for breaking laws, why would I cry for Grokster? I don’t buy the claim that Grokster had any right to profit from their network, just like I don’t buy Enron’s right to profit.

So, the kind of innovation I’d like to see are anonymous P2P networks that take a model like BitTorrent and make it better for sharing high-bandwidth independent media materials across borders and in a way that protects producers and viewers from governments and corporations.

We don’t need a corporate sponsor, like Grokster, for that to happen, and this decision doesn’t necessarily get in its way.

Matt at Machination.org tries on some clear thinking about the Supreme Court decision in the MGM vs. Grokster case:

From what I can tell, this is a fairly narrow decision with nuance. The Supreme Court seems to have ruled that a company cannot promote an illegal use for a technology. Those same kids writing lean little p2p applications for assignments will create on their own. If they go ahead and say “hey, use this to steal,” then they risk feeling that ominous chill of the man breathing down their neck (or is that “the heat?”). If an entity does is, then it can be held accountable for such use, says the court. This is not the same as saying that if a technology is misused or has an illegal use that then the entity that produced is liable, and I think the line is pretty clear.

I think he’s on the right track. While it would be nice to have a clear umbrella decision like the Betamax one, very few Supreme Court rulings are ever that clear. And this one does not say that Grokster is guilty, just that the case may proceed to determine if it is.

Of course, this is the problem with the law, in general. While the Supreme Court is the court most likely to run on clearer principle, it’s still hemmed in by the constitution as interpreted, the laws and written, and custom.

While on the surface Court rulings seem to disallow particular behaviors and actions, they also frequently provide clear instructions on how to avoid breaking the law while achieving similar goals.

Following Matt’s logic, it could be just a matter of the developers behind a P2P technology to be very careful in how they promote and market their tech.

Keep in mind that this case goes after a particular for-profit company, which is trying profit off this technology. Things do change when the tech is developed by volunteers, especially if they’re anonymous and/or from outside the US, especially if the marketing issue is the most defining.

I’m not cheering this decision, but I think it’s important to recognize that we’re all stuck in a pragmatic compromise of having to thrash through thousands of screwed up laws everyday, and somehow most of us figure a way to cut through the maze.