This week’s Supreme Court ruling (MGM v. Grokster) favoring the music industry against file-sharers should be called “the day the music [innovation] died.” It’s the day that 9 gray-haired eminences with little or no understanding of technology and the way real people use it in the real world decided that the corporate fatcats who’ve failed so miserably in holding onto their customer base deserve another day (or generation) to maintain their bloated corporate monopoly. It’s the day that technological innovation was chained and collared in favor of a dinosaur musical distribution system.
The decision walks a very thin and slippery line saying that creating file-sharing software is not in itself an infringement, but “actively encouraging” third-parties to share files does constitute infringement. To me, the justices doubled themselves up in knots to reach their conclusion. Now, no one–not innovators, not the music industry and certainly not the average person will have a clue as to where we go from here. In the future, anyone who creates technology related to online sharing of information will see that Damocles Sword of potential copyright lawsuits hanging over their head. No average person would have a clue how to determine what future software violates copyright and what doesn’t.
Souter’s decision turns Potter Stewart’s phrase about pornography, “I’ll know it when I see it” on its head. As far as file-sharing is concerned we won’t know what is kosher and what’s not until it’s been vetted by fleets of corporate lawyers, appeals court judges and Supreme Court justices.
I’m left scratching my head as to how the Groksters of the world might adapt their system so that it could still stay within the law (as defined by David Souter and his friends). I sure hope there is a way as I think (and I’ve written about this a number of times) that file-sharing is here to stay. Even should Kazaa, Morpheus and Grokster disappear, too many have supped at the table of file-sharing to let it die. Other companies, other software, other innovators will rise up to take their place. It should be like a guerilla war. Remember those Iranian reformist newspapers which started one day only to be closed by the mullahs the next and reopened the following day under a different name. The watchword for the file-sharing community should be: start up, wait for the copyright infringement claim, close up, open again with a different and better product (perhaps one that is harder to label as “infringing”).
I find myself befuddled by the New York Times editorial position endorsing the decision when, after Grokster’s victory in the Ninth Circuit, the Times wrote this in an editorial:
This decision…implicitly raises a question central to most copyright battles. Is society better served by restricting or even prohibiting new technologies to protect the rights of copyright owners or is there a greater good in the widest possible exchange of information?
Freedom of information is at the root of American democracy, and yet every day we see that freedom being compromised, controlled and limited. The Grokster decision is a ruling in favor of keeping our bets open about which technologies will turn out to serve our freedoms best.
I think the Times has done a backflip on the issue. They move from a position advocating the “widest possible exchange of information” to a wholehearted endorsement of the record industry’s infringement claims. This week’s decision directly contradicts the “widest possible exchange” principle. I have to say that I’m not surprised at the flip-flop and found the earlier editorial to be surprising and refreshing in light of the Times’ being a major copyright owner who might be expected to side with other media conglomerates like the record industry. It seemed almost as if they were being a traitor to their class. And indeed, in the latest editorial they have reverted back to form.
Easily the most ludicrous and patently self-serving statement came from the RIAA:
“Tonight parents all across the country will go home to have conversations with their kids and say there is a right way and a wrong way to enjoy music,” said Mitch Bainwol, chairman of the Recording Industry Association of America, the lobbying group for the major music labels.
Is that insufferable or what? I’m a parent and I did no such thing. I have far better things to talk about with my kids than telling them to “Honor thy record industry.”
Bruce Adelsohn says
I’m left scratching my head as to how the Groksters of the world might adapt their system so that it could still stay within the law (as defined by David Souter and his friends).
Suggestions I have heard or conceived all revolve around two specific additions to the system: pervasive disclaimers and possible flags for copyrighted material, enabling the system to block those files when identified.
I do believe that the burden for providing those IDs ought to be on the copyright holder; the RIAA and MPAA ought to be able to identify the items on which they make inordinate profits while the artists mostly just get by. No, I have little to no sympathy for their position; study after study tells us that filesharing increases, rather than decreases, purchases of music and movies. Otherwise how do we explain things like the low percentage of songs from ITMS on iPods?
A good analyst on the subject (being one of the attorneys involved peripherally with Grokster, and directly with the even worse Brand X decision) is Harold Feld, who writes Tales from the Sausage Factory at Wetmachine. I know he’s got some stuff going on that distracts him from focusing on his writing, but when he does, he’s among the best.
I know how I enjoy music. I make it. I listen to it. And I ignore pompous windbags who make money out of others’ creativity.