Wednesday, June 29, 2005

Rethinking Grokster

Several people have put some real thought into Monday's Supreme Court decision on MGM v Grokster and the thinking seems to be swinging around, or at least calming down. Doc Searls summarizes the nuances:
Grokster has turned out to be the kind of friend that assures the worst enemies. Among those enemies is a Supremely false distinciton between creativity and technology.
In other words, there's arrogance on both sides of the debate. You can't completely discount a copyright holder's need to make a living, a position fashionable in some corners of Slashdot.

Joshua Brauer notes that the court in essence affirmed the so-called Betamax decision, which said that the technology wasn't enough, by itself, to make manufacturers liable for illegal actions by users. That's a good thing, and no doubt disappointed the content industry. Still, product makers can still get in trouble if they encourage the infringment. I'm not sure what the line is, though, and neither will your average startup.
At the end of the day I'm not likely to lose too much sleep over a couple of companies who flaunted the law and were called on it. Nor am I concerned that a couple of bad apples are about to spoil the batch of innovation to come. iPod is a perfect example of a technology that has substantial non-infringing uses that has not been marketed as a way to break the law and does not profit from its customers who happen to ignore the company's admonition not to steal music.
Brauer's analogy to a gun -- the "HOS Killer" -- doesn't quite work, however. Armor-piercing bullets, and handguns in general, have no other purpose but to kill human beings. They're designed explicitly for it and that's not hidden. Take a look at any gun magazine, for example. And they're still legal.

(To answer Joshua's paranthetical question, paranthetically, I'm interested in Supreme Court decisions in the U.K. for two reasons: 1) I'm American. 2) What the Americans do affects us way out here, too. Apple's contortions to get on the friendly side of the record companies turns me into a criminal because I want to play my iTunes music, stored on the livingroom PC, on my Linux PC in the bedroom, to take just one example. To do that, I have to crack Apple's digital rights management, a stupid and ineffective waste of time. More and more software and devices are coming with similar roadblocks, almost entirely because of the twists and turns of U.S. courts and legislation.)

More from ReasonOnline:
As a technical matter the content companies won MGM v. Grokster; the decision remands the case to a trial court for further factfinding as to whether defendants "induced" infringement. But it's clear that they didn't win anything like what they had been asking the Supremes for—a rule that would penalize any company that made money off a product widely used for infringement, regardless of what the company intended. And though the technical companies and consumer groups are troubled by the outcome in this case, there's still much to encourage them.
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