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Post on Grokster

The Washington Post editorializes against the Grokster respondents:

This caution is a fair one, and it is critical that the court not adopt a broad rule that threatens liability for manufacturers of technologies whose misuse might enable piracy. But Grokster and StreamCast are not simply technologies that can be used for good or ill; they are technologies that were designed and marketed precisely so as to facilitate theft. Both companies positioned themselves to inherit Napster's user base when the courts ordered that company to stop permitting illegal file-sharing. Both have promoted themselves based on the wide variety of materials illegally available. And both have frustrated copyright holders' efforts to police their use. A company that builds its entire business model around facilitating illegality should not be immune from liability because of the possibility of innocent use. Drawing a clear distinction between such a product and an iPod would protect both innovation and intellectual property.
I think the main thing you have to point out in response to this is that at the time of the Betamax case, most VCR users did, in fact, use their VCRs for infringing purposes.

A company with a dual-use product is going to have a very hard time building up a market for legitimate uses of its product if the largest companies capable of acting as suppliers (movie studios in the VCR case, record companies in the P2P case) are constantly trying to kill the product off. Nowadays, of course, we take it for granted that VCRs will primarily be used for legal purposes, but that's only because, having been prevented from shutting the VCR market down, movie studios were forced to adapt to the new technological realities and create a legal distribution mechanism to meet obvious market demand. P2P systems already are being used for legitimate purposes. The extent of their legitimate usage will naturally grow if they are not banned, because then companies will have an incentive to build business models that take their continued availability into account.

Second, the Post's proposed "clear distinction" isn't clear to me at all. Is the difference between an iPod and Grokster supposed to be that X percent of songs on people's iPods are non-infringing while only Y percent of P2P traffic is non-infringing? If that's the rationale, then where is the clear distinction to be drawn? Keep in mind that the clarity of the distinction is essential. New products won't be developed unless manufacturers can be reasonably certain as to what they are and are not allowed to do. Newspaper employees are surely familiar with the concept of a "chilling effect" and the idea of giving wide latitude in order to prevent such effects. It's important to note that the "Grokster no, iPod yes" view the Post is trying to stake out is not one the RIAA shares. The content industry has tried at various points in time to ban the player piano, radio broadcasts, VCRs, and, yes, MP3 players. Give them the legal tools necessary to chill innovation and they will be used.

Last but by no means least, the editorial suggests a kind of balancing test that will allow us to "protect both innovation and intellectual property." This is mistaken. Protecting intellectual property is not a proper goal of intellectual property law. Rather, Article I, Section 8, Clause 8 of the Constitution gives the congress the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Protecting innovation is the only legitimate goal of intellectual property law. What needs to be balanced here is the promotion of musical innovation versus the promotion of innovation in the fields of data storage, duplication, transfer, and access. Much P2P transfer is legitimate. Blocking that is cost. Much infringing P2P transfer has no adverse impact on the financial health of copyright owners. Blocking that is also a cost. Blocking the deployment and development of new technologies is a third cost. What we need to weigh against all these costs is not that record companies will need to forgo some profits they might otherwise have made, but the risk that if Grokster is not shut down we will actually see less new music recorded in the future than we otherwise might. I don't actually find it plausible that the continued availability of P2P software will have any adverse impact on the production of new music (basically, you'd have a situation where artists have a smaller chance of reaping windfall profits but a larger chance of securing a relatively large audience for their output). But even if it does some adverse impact on this, that adverse impact needs to be weighed against the stifling effect on new technology and the smaller resulting audience for music everywhere.

The idea that intellectual property law should have the protection of intellectual property as its purpose rather than as the means used toward the end of overall social betterment is a serious error that the content industry has been remarkably successful at inducing in American society. Needless to say, one way in which this has come about is that we all need to get the vast majority of our information about the world from subsidiaries of the content industry itself.

March 30, 2005 | Permalink

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Comments

If that's the rationale, then where is the clear distinction to be drawn?

Easy -- you can get porn on the Grokster.

... iPod photo the what now?

Alert the Post editorial board, post-haste!

Posted by: Oh Snap! | Mar 30, 2005 10:49:15 AM

The case was argued yesterday, and the EFF is optimistic the Court understands the primary arguments against the petitioners (which were well-presented here, kudos).

Posted by: David Richmond | Mar 30, 2005 10:54:43 AM

"Much infringing P2P transfer has no adverse impact on the financial health of copyright owners."

And even if it did, your point is that the Constitution doesn't weep for them, to the extent that it doesn't impede "the Progress of Science and useful Arts."

Posted by: RT | Mar 30, 2005 11:07:18 AM

Actually the real concern regarding the iPod, is that it uses iTunes as the gatekeeper. It's not unthinkable to see the day where Apple releases an upgrade at the behest of the music industry to lock out all MP3s from iTunes/iPod.

If the RIAA wants a real hobby horse to go after that will better the lives of artists/producers in the post-digital world, they need to lobby for laws removing right of first use.

What tends to happen an awful lot, is people discover older music on P2P, go to buy the CD at a local USED CD shop, they feel ethical, but the artist basically still gets screwed. Is the problem the P2P? Nope. The long tail of P2P is a great potential profit maker actually. The problem is the used CD shop. Now, I really REALLY doubt that any government is going to fuck with first-sale rights. It'll start a huge uproar. Spread it to DVD sales, and you have companies like Blockbuster up in arms etc. It's just not going to happen.

But, in all honesty, the best thing the RIAA can do is actually do an educaton campaign, declaring the purchase of used CDs to be hurtful for their favorite muscisans, have some come on, say how if they don't sell shrinkwrapped they can't make new music, etc.

It's the old Slashdot addage. Vote with your dollars. That should be the slogan. Want better music? Buy the stuff you like. THAT'S the best course of action for the RIAA. (The MPAA people already DO vote with their dollars a whole lot more so it's not really as much of a concern.)

Posted by: Karmakin | Mar 30, 2005 11:10:11 AM

Your argument is strong than you think--five years ago, the original Diamond MP3 player was also attacked by the RIAA on the same piracy grounds that Grokster is now being attacked:

http://www.virtualrecordings.com/diamond.htm


Posted by: mw | Mar 30, 2005 11:13:07 AM

The betamax case wasn't about the percentage of infringing use versus non-infrigning use. Universal and Disney considered essentially all uses of the device to be illegal. They weren't arguing that even though it could be used for private taping of shows off the air, it needed to be banned because it allowed for mass piracy - they held that the private personal use taping of their programs off of TV was illegal.

Posted by: chris green | Mar 30, 2005 11:16:13 AM

Karmnakin--Could you please explain in plain English, the first-sale rights rule? Thanks

Posted by: Abby | Mar 30, 2005 11:25:21 AM

Abby:It's quite simple. If you buy a product, you have the right to sell it. Now, various industries try to skimp by that, especially in software, but generally speaking, you have the right to sell the original copy you purchased. (Destroying all back-ups and the like, of course)

Posted by: Karmakin | Mar 30, 2005 11:28:02 AM

But yeah Chris, mw, these guys are so egrarious, so extreme, that they may really need the IP death penalty. Revoke all IP protections they have.

Posted by: Karmakin | Mar 30, 2005 11:30:40 AM

Translated into English, Karmnakin appears to be advocating banning the used CD market, since artists don't get profits from resales. I'm extremely glad that this won't happen, since it is both wasteful to throw perfectly good things away and ridiculous to think that you can't dispose of things that you buy as you choose. You could put my sympathy for the content industry in a thimble right now, what with the insane infinite extensions of copyright law and the Luddite attitude towards technology.

Posted by: Marc | Mar 30, 2005 11:32:44 AM

Can I ask a naive question? (I should preface this by saying I'm the last person to want P2P file sharing networks made illegal.)

Why, philosophically, is it wrong for IP laws to protect property as an end, rather than just as a means to the production of more and better content? I can understand why the second end should be more important than the first, but not why the first should not be an end. Is it just that it's not specifically permitted by clause 8? Couldn't it be permitted under the commerce clause? Lots of other stuff is. And on the broader point, I understand why it should be wrong to allow IP laws to stifle innovation, because innovation is the more important goal, but at the same time, don't artists deserve some of the fruits of their labor? Can't IP laws have as an end making it possible for them to make a living as artists?

Just a question, because I have been little-exposed to all the issues here, and I see everyone seems to agree with an assumption. Maybe I'll agree with it too when I see the reasoning hashed out; I just haven't yet.

Posted by: Katie | Mar 30, 2005 11:51:39 AM

I'm not advocating banning it. What I'm advocating is a marketing campaign, instead of focusing on the promotional channels, on encouraging people to purchase shrink-wrapped copied in order to truly help the artists out.

I'm advocating education, not legislation.

Posted by: Karmakin | Mar 30, 2005 11:57:54 AM

I think the main thing you have to point out in response to this is that at the time of the Betamax case, most VCR users did, in fact, use their VCRs for infringing purposes.

It's not a good start to a blog entry when your very first sentence is false. By the time Betamax had shown up, it was well established that recording a broadcast over the airwaves was perfectly legal under fair use. For example, you could tape music on the radio. What was illegal (and still is) is distribution of said broadcast to your friends. And that was a very small percentage of Betmax usage indeed.

What has changed is that now the primary use of Grokster etc. is to distribute stuff. Unlike the Betamax case, it is clear that the majority use, indeed nearly the universal use, of Grokster is for illegal purpose.

Posted by: Bah Humbug | Mar 30, 2005 11:58:03 AM

bah humbug --

not entirely sure your comment is correct. apparently at oral argument yesterday, RIAA admitted for the first time EVER that it is legal to purchase a cd and then copy it or upload it to your harddrive.

i don't see much distinction between such copying and recording off the radio or off the tv for personal use.

i do agree with your point that distribution is the issue in this case, however my general impression is that "fair use" is far more restrictive than is commonly believed.

if i'm wrong on the law however, my apologies.

(i'm only a 1L :-)

Posted by: dave | Mar 30, 2005 12:08:25 PM

Of course Washington Post has a vested interest in the outcome. They want to increase the value of their company, which they obviously think would happen if Grokster lost. Hardly an unbiased view.

I use p2p software for non-infringing uses. If they think what I do is illegal, then sue me. But is against the tradition of western jurisprudence to sue for the existence of downloaded songs on my computer. I don't need to prove that I had a legal right to them, they need to adduce evidence, before going to court that it was illegal. Would the RIAA be willing to set up a registry of who has bought the right to hear certain songs? No, since their business model involves selling the same song over and over in different formats. Illegally, it turns out when it came to CD's whose prices were inflated by price fixing.

Price fixing is stealing.

If peer to peer software is illegal, then the internets is illegal. These pirates, RIAA (who stole my money with price fixing) and MPAA, need a new business paradigm. And copyrights need to be shortened. 14 years was the original length in this country. Some are over 100 years. How does that balance the encouragement of IP producers, and the benefits of future artists and inventors getting to freely build on our past intellectual heritage as was done through all of human history until recently?

Posted by: epistemology | Mar 30, 2005 12:09:04 PM

As a supplier of content, specifically fiction, copyright laws are there to protect me. I have four published novels and quite a few published short stories, and I don't want someone to steal them and sell them without me receiving my contracted share.

That said, 25 years of copyright protection is generous. Copyright law today is ridiculous - it protects shareholders, not artists. Not that I've written any bestsellers, but if I did write one, I should be able to make enough from it in 25 years to satisfy my personal needs. If I can't, then I don't deserve to profit by it.

I also don't think my children or grandchildren should be allowed to hold those copyrights unless I die before the original 25 year period. They didn't write my books. Let them write their own damn books. I love my kids and want them to inherit whatever wealth I manage to accumulate (if any), but I'd much rather be immortalized like Shakespeare and have my stories still being retold four hundred years from now than to have some people two generations away who haven't even been born yet and who I may not ever know sit around profiting from my labor like I am some kind of natural resource that they were lucky enough to be born atop. That's what land is for, and stocks and bonds and money and physical assets - the things you invest in with the money you make from your art. The art should be allowed to move on.

Posted by: Jeff | Mar 30, 2005 12:10:12 PM

Better watch out, Jeff- your publisher might dump you if they found out you wrote such blasphemy.

Posted by: SP | Mar 30, 2005 12:25:02 PM

"Why, philosophically, is it wrong for IP laws to protect property as an end"

The question assumes that "intellectual property" is property like any other. It isn't. If you have a book, and I take it, you don't have it anymore. (that is, tangible property is rivalrous). On the other hand, if I make a copy of your book, you still have it, so I haven't deprived you of any property. What I have done is interfere with a government-granted monopoly to the book's author/publisher. But if we're going to grant monopolies to people (or in this case, stronger enforcement rights of those monopolies), it makes sense to think about whether doing so is a net benefit to society.

But I guess the framing battle of classifying copyright as a form of "property" was lost a long time ago.

Posted by: Joe | Mar 30, 2005 12:25:50 PM

Jeff: I don't get why land, stocks, bonds is something morally clean to pass on to future generations, but a song or story is not. After all, you created a story by your own labor, but the land was a gift from the Earth. Why is title to some land that most likely came into possession via a chain of thefts and violence ( you bought it from someone at the end of a chain starting with the massacre of some Indians or an enclosure or some similarlrly ugly event) morally pure, but title to a story about Mickey so tainted?

If you start with the premise that all property is valid only as long as it is socially useful, which I think is Jefferson's position, you get to all sorts of uncomfortable conclusions.

Posted by: citizen k | Mar 30, 2005 12:29:49 PM

Great comments Jeff.

As a musician, I find the whole issue of P2P at first troublesome but then absurd. In the genre I work in, Jambands, bands have allowed fans to trade live material for years, without losing money. Grateful Dead, Phish, Strangefolk, etc. TRUE fans will buy the studio albums when they come out. And TRUE fans will go to the live shows. That is where the artists make their money. If the RIAA is realy interested in the artists, they ought do that education campaign Karmakin mentioned above. Make the fans aware that if they're really interested in the bands success, they ought to buy the albums and go to the shows.

As a musician, I want the money that is entitled to me. But I've also downloaded songs by bands in which I have no interested in buying their full CD, mostly bands from years back. If their time has passed, then so be it. If they can't make a living because they couldn't make their appeal to enough people to buy the album, then so be it. If MY music is not good enough to live off of, then so be it. If that is the case, maybe I shouldn't be making it.

Some of these bands who give away live shows for free are actually recording and mastering some shows and selling them. They ask the fans to stop trading the ones they do, and the fans pretty much abide. Usually the songs are less than a buck each and I can get a full show for 12-20 bucks. I'll gladly shell out that cash for my favorite band.

Posted by: Adrock | Mar 30, 2005 12:30:47 PM

But none of this brings back the Player Piano. Bastards!

Posted by: Wrye | Mar 30, 2005 12:32:47 PM

Matt - this is from the director of the Decemberists video. Thanks for the kind words here... Can you please drop me a line so I can say thanks? Can't find your email address.

info(at)otaku-house.com

Just replace the paranthetical with the magic sign of @.

Posted by: A Stewart | Mar 30, 2005 12:34:56 PM

I'm a little disappointed in the Post for arguing that because Grokster markets itself as tool that can be used for piracy it is should be banned.

Marketing your product is clearly within the legal rights of a company under the 1st Amendment. If another company is harmed by that marketing - then let the companies that are harmed sue under tort law - not criminal law. The courts need to preserve the 1st Amendment rights of Grokster and its users as their primary mission. An upfront ban on the technologies or software is clearly prior restraint, and not allowable.

Posted by: Cy Guy | Mar 30, 2005 12:35:02 PM

The record industry is scapegoating Napster for its problems, just like the movie/TV industries did with Betamax. The real reasons people aren't buying records are (1) CDs are ridiculously overpriced (and most have only one or 2 good songs, if that) and (2) most records these days simply aren't worth buying, thanks to the assault on creativity by corporatization of the industry. Napster has nothing to do with any of this. There's also a resemblance here to the bogus "tort reform" arguments....

Posted by: Rebecca Allen, PhD | Mar 30, 2005 12:36:57 PM

Katie wrote, Why, philosophically, is it wrong for IP laws to protect property as an end, rather than just as a means to the production of more and better content?

Many issues concerning economic justice can't be proven one way or another "philosophically," because at some point they're more like axioms which must be assumed (or their negation assumed) rather than theorems that can be deduced. So arguments one way or another will never amount to a proof.

That being said, I hold the main point is that excessively rigid IP laws are wrong when considered in the context of human freedom and the way humans share information.

Saying that the primary point of intellectual property laws is to give the notional owner complete control of his work at the expense of all else is to say that person A should be allowed to control the what persons B, C, ... do with the contents of their minds.

Say, for example, that person A composes a song, and person B hears it on the radio. Person B now has a copy of person A's content in his mind. Should it really be A's right to tell B how to dispose of these ideas?

This isn't as far-fetched as it sounds. There's information on the internet about one of the music writer's groups sueing some kind of scouts (maybe girl scouts) for infringement, because the scouts sang the songs around a campfire. As far as I can tell, this incident actually occured.

A "derivative" reason is that, if you allow rigid IP laws, you're going to stifle innovation. Ideas are built upon other ideas, and if the IP legal regime is too rigid, the cost of cross-registering becomes too high for all but the most wealthy market entrants.

(I call that "derivative" because that argument is derived from a related but distinct principle, namely, the value of encouraging information.)

Not to mention the fact that many ideas while nominally new to their discoverers aren't all that deep. A lot of computer science-related patents are like this. In these cases, IP laws just serve to facilitate rent seeking. ("Rent seeking" is an economics term; google for meaning.)

Of course, if humans didn't value the freedom of their thoughts, or if humans assembled ideas differently than we do, then the above wouldn't apply.

Posted by: liberal | Mar 30, 2005 12:39:27 PM

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