------ Forwarded Message
From: Lauren Weinstein <[EMAIL PROTECTED]>
For now, just a quick note on the Supreme Court's unanimous decision
to send the Grokster case back to a lower court, saying that
file-sharing services can be sued for third-party infringement
in some situations:
"We hold that one who distributes a device with the object of
promoting its use to infringe copyright, as shown by the clear
expression or other affirmative steps taken to foster infringement,
is liable for the resulting acts of infringement by third parties."
Obviously there is lots of room for interpretation, so courts
and lawyers will be busy for many years on these cases.
However, let's be clear about one thing. In the long run, the decision
is like trying to use a wad of chewing gum to plug a leaking hole in
a massive earthen dam. You may cut down on the dripping for the moment,
but don't throw away your snorkel, for the flood is yet to come.
The ability to sue companies providing file-sharing or related
technologies, or even the end-users of such technologies (the latter
group was not at issue in this case), will not significantly reduce
the overall level of infringing file-sharing except perhaps in the
*extremely* short run. In the long run, such file-sharing will
continue expanding, especially in the video arena.
This is a technological reality that cannot be altered through mere
economic, legal, or political will. I say this even though I am
opposed to the rampant piracy of music and films that obviously goes
far beyond any possible interpretation of fair use (e.g., the
ability to make back-up or other personal-use copies of copyrighted
media is completely reasonable, but offering that media publicly to
all comers on a file-sharing network is not).
But in the end, how we feel about this won't really matter, for
the technology trumps us all. There is no practical technological
means to stop arbitrary file-sharing, for in the end it's all just
about moving bits from place to place, and that's what the Internet,
or even telephone modems for that matter, are all about.
The ruling will obviously suppress development in this area (and
many affiliated technological areas) by U.S.-based commercial
enterprises and other organizations who might wish to popularize or
commercialize such systems. But such technologies will continue to
be developed elsewhere and be used globally, including in the U.S.
While the ability to sue internationally has been increasingly
enhanced as of late, there will surely be those in the international
community willing and able to fill the development gap created in
the U.S. by this court decision.
Open-source file-sharing systems will continue to proliferate as
will widespread music and film piracy, though the file-sharing
developers may become anonymous, and various sophisticated "masking"
techniques will be increasingly employed as these systems move
"underground" (e.g., file-sharing can be encrypted and disguised to
look like a VoIP stream, e-mail, or even a bunch of pretty digital
photos).
In the end, everyone will lose on this one. Large-scale piracy will
continue and grow, while many worthwhile legal applications for
file-sharing won't be commercialized or openly deployed due to fear
of lawsuits.
Viewed dispassionately, the Supreme Court's decision is actually
understandable -- there is (or should be) a gut feeling that
widespread piracy is ethically wrong. But just as trying to
legislate the value of "pi" won't change its actual value, the
Supreme Court's ruling in the Grokster case won't alter the
underlying realities.
That's just the way it is, like it or not -- unless we're willing to
completely turn off the Internet -- and the phone system!
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