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P2P is the new bong
Bongs are not illegal. In fact, if you're one of the many consumers who prefer to smoke their tobacco through a water pipe, you can pick one up here, here, here; at any of these places; and so on. But wait, you say. Isn't possession of drug paraphernalia illegal? Certainly, I answer. But these particular devices aren't made for smoking drugs. They're made for smoking tobacco, and as long as they're advertised that way, water pipes are not illegal.
That, in a nutshell, is the future of P2P software. The Supreme Court ruled Monday that makers of peer-to-peer software (Grokster, in this case) can and should be held responsible for copyright infringement that happens on their network. However, and this is the important part, the court did not hold the technology itself liable. The ruling says P2P companies can be sued if they actively induce consumers to break the law. So, despite the wringing of hands about what impact this ruling could have on the future of technology, and despite the fact that this is a technology column, this ruling is actually not so much about technology. The Grokster ruling is actually fairly anticlimactic, in the sense that the debate over the real issues--that is, how to deal with piracy, the insecurity of digital media, and the future of fair use in America--weren't resolved or really even addressed.
Technology, good; pirating, bad
Justice Breyer in particular went on at some length (link goes to a PDF of the decision) about the benefits of P2P software, and said specifically that he sees "a significant future market for noninfringing uses of Grokster-type peer-to-peer software." That's also a good thing. The worst fears of the pro-fair use community, I think, were that the ruling would broadly indict P2P technology, putting a damper on all sorts of file-sharing innovation, from home networking to personal video players to video-broadcasting devices such as the Slingbox. That didn't happen, and personally, I doubt the ruling will have much more impact on marketing innovation than it will on technological innovation. Depending on what happens in the MGM v. Grokster case now that it's been kicked back to the lower courts, I predict we'll see about the same number of digital media pirates, a lot more creative marketing of the "this bong is for tobacco" variety, and the same amount of fair use and copyright infringement confusion we had before. We'll also see more lawsuits against companies like Grokster, but inducement is a tricky thing to prove, and lower courts will likely spend years trying to set precedents and either narrowing or broadening the high court's interpretation.
On that latter point, in fact, I agree with William Patry: the Court, as it has done so many times recently, punted. The ruling doesn't touch Sony v. Betamax--the landmark fair use case that gave us the VCR and currently allows us, among other things, to fast-forward through commercials on our TiVos. Sony's gotten a lot more difficult to interpret, as you know, since digital media pretty much stretches fair use to its outer limits. However, I also agree with Ernest Miller, who postulates that maybe now isn't the time to decide the future of Sony. This particular button is white-hot right now; it's so political and there's so much money at stake that it's almost impossible to make a reasoned decision (or, possibly, it's impossible to expect a reasoned decision to come from this court).
It's pretty much common sense to say that you shouldn't be allowed to run a company whose purpose and moneymaking proposition is to encourage users to break the law. And I think it's easy for fair-use proponents (of which I am one) to find themselves in an odd position with respect to a case such as Grokster. The MPAA is claiming victory with the ruling, but it's hard to find a corresponding loser other than, potentially, Grokster. But the fact is, despite my sometimes cavalier comments about file downloading and sharing, I certainly wouldn't expect any kind of Supreme Court ruling that would validate large-scale digital piracy. As other bloggers have capably pointed out, this was almost the only ruling we could expect. Intellectual property theft is illegal. Period. But our parents on the Supreme Court have left us children to keep squabbling over what does and does not constitute fair use, and I hope only that the MPAA, the RIAA, and others aren't emboldened by this ruling to keep imposing greater and greater restrictions on our media.
Keep the fight alive
In that respect, I actually have some hope. We've reached a point where iTunes is the second most popular music download service, after P2P site WinMX. Even Microsoft is talking about building a P2P protocol for file transfers, code-named Avalanche. Consumers have come to expect digital accessibility, whether it's from new Media Center technology or just a rejection of proprietary photography formats. And the Supreme Court itself says P2P technology is both important and useful for the sharing and broadcasting of personal, educational, historic, and secure licensed files.
Yeah, we're going to have to solve the copyright infringement issue. Our copyright laws are a mess. They're either out-of-date or DMCA-draconian, and they're being cheerfully abused by both government and corporations. (Never let it be said that the United States isn't in the business of protecting business.) And yes, it's increasingly ridiculous to craft laws that take a wink-and-a-nod approach to legality, and it won't solve the problem long term. But overall, I think I'm happy that the court punted for now. Innovation happens quickly, but the consequences of that innovation are slow to develop--and we're slow to understand them. Let's not hand anyone a decisive victory just yet.
By Molly Wood, section editor, CNET.com
Tuesday, June 28, 2005
Bongs are not illegal. In fact, if you're one of the many consumers who prefer to smoke their tobacco through a water pipe, you can pick one up here, here, here; at any of these places; and so on. But wait, you say. Isn't possession of drug paraphernalia illegal? Certainly, I answer. But these particular devices aren't made for smoking drugs. They're made for smoking tobacco, and as long as they're advertised that way, water pipes are not illegal.
That, in a nutshell, is the future of P2P software. The Supreme Court ruled Monday that makers of peer-to-peer software (Grokster, in this case) can and should be held responsible for copyright infringement that happens on their network. However, and this is the important part, the court did not hold the technology itself liable. The ruling says P2P companies can be sued if they actively induce consumers to break the law. So, despite the wringing of hands about what impact this ruling could have on the future of technology, and despite the fact that this is a technology column, this ruling is actually not so much about technology. The Grokster ruling is actually fairly anticlimactic, in the sense that the debate over the real issues--that is, how to deal with piracy, the insecurity of digital media, and the future of fair use in America--weren't resolved or really even addressed.
Post your comment hereTechnology, good; pirating, bad
Justice Breyer in particular went on at some length (link goes to a PDF of the decision) about the benefits of P2P software, and said specifically that he sees "a significant future market for noninfringing uses of Grokster-type peer-to-peer software." That's also a good thing. The worst fears of the pro-fair use community, I think, were that the ruling would broadly indict P2P technology, putting a damper on all sorts of file-sharing innovation, from home networking to personal video players to video-broadcasting devices such as the Slingbox. That didn't happen, and personally, I doubt the ruling will have much more impact on marketing innovation than it will on technological innovation. Depending on what happens in the MGM v. Grokster case now that it's been kicked back to the lower courts, I predict we'll see about the same number of digital media pirates, a lot more creative marketing of the "this bong is for tobacco" variety, and the same amount of fair use and copyright infringement confusion we had before. We'll also see more lawsuits against companies like Grokster, but inducement is a tricky thing to prove, and lower courts will likely spend years trying to set precedents and either narrowing or broadening the high court's interpretation.
On that latter point, in fact, I agree with William Patry: the Court, as it has done so many times recently, punted. The ruling doesn't touch Sony v. Betamax--the landmark fair use case that gave us the VCR and currently allows us, among other things, to fast-forward through commercials on our TiVos. Sony's gotten a lot more difficult to interpret, as you know, since digital media pretty much stretches fair use to its outer limits. However, I also agree with Ernest Miller, who postulates that maybe now isn't the time to decide the future of Sony. This particular button is white-hot right now; it's so political and there's so much money at stake that it's almost impossible to make a reasoned decision (or, possibly, it's impossible to expect a reasoned decision to come from this court).
It's pretty much common sense to say that you shouldn't be allowed to run a company whose purpose and moneymaking proposition is to encourage users to break the law. And I think it's easy for fair-use proponents (of which I am one) to find themselves in an odd position with respect to a case such as Grokster. The MPAA is claiming victory with the ruling, but it's hard to find a corresponding loser other than, potentially, Grokster. But the fact is, despite my sometimes cavalier comments about file downloading and sharing, I certainly wouldn't expect any kind of Supreme Court ruling that would validate large-scale digital piracy. As other bloggers have capably pointed out, this was almost the only ruling we could expect. Intellectual property theft is illegal. Period. But our parents on the Supreme Court have left us children to keep squabbling over what does and does not constitute fair use, and I hope only that the MPAA, the RIAA, and others aren't emboldened by this ruling to keep imposing greater and greater restrictions on our media.
Keep the fight alive
In that respect, I actually have some hope. We've reached a point where iTunes is the second most popular music download service, after P2P site WinMX. Even Microsoft is talking about building a P2P protocol for file transfers, code-named Avalanche. Consumers have come to expect digital accessibility, whether it's from new Media Center technology or just a rejection of proprietary photography formats. And the Supreme Court itself says P2P technology is both important and useful for the sharing and broadcasting of personal, educational, historic, and secure licensed files.
Yeah, we're going to have to solve the copyright infringement issue. Our copyright laws are a mess. They're either out-of-date or DMCA-draconian, and they're being cheerfully abused by both government and corporations. (Never let it be said that the United States isn't in the business of protecting business.) And yes, it's increasingly ridiculous to craft laws that take a wink-and-a-nod approach to legality, and it won't solve the problem long term. But overall, I think I'm happy that the court punted for now. Innovation happens quickly, but the consequences of that innovation are slow to develop--and we're slow to understand them. Let's not hand anyone a decisive victory just yet.
