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.