MGM v. Grokster: A Response
This is a response that I wrote on a friend’s message board regarding the MGM v. Grokster case, which was decided in favor of MGM in a shocking 9-0 vote by the Supreme Court. Effectively, they hold Grokster (and by extension any other Peer-to-Peer software manufacturer) responsible for the illegal actions perpetrated by their customers while using their software.
One of the key non-infringing uses of P2P tools is the ability to distribute music (or other content) to which you own the rights, basically giving you access to a phenomenal distribution system at little to no cost. By eliminating these means of distribution, the AA’s are basically FORCING artists to use their distribution network. It would be like AT&T saying that no one else was allowed to even lay phone cable at their own cost, because it infringes on their right to own all phone cable.
I’ll admit that this probably wasn’t the main focus of the suit, but you can’t tell me it isn’t a nice side-effect, and one which I’m sure the execs were counting on. Even with the limitation of proving “promotion” of illegal infringement, we have yet to see what the litmus test for “promotion” is. Does simply creating something that can be used for infringement count? If you ever mention the possibility that it can be used for infringement, does that count? Do you have to spend big bucks to combat infringement, even if doing so cripples your technology to the point where a consumer would never consider purchasing it?
The primary reason that the content industries are even in this predicament is that they have pursued a business model which is no longer the primary viable method of distribution. If the RIAA had said eight f***ing years ago: “Hey, this Napster thing is kinda cool, we could use something like it to distribute our music” instead of “Napster is the devil and is ruining our business, they must be killed”, we would have a very different atmosphere. The RIAA has been reducing the quantity and variety of content produced, and simultaneously increasing cost which is only possible due to their near-monopolistic control of music distribution. By opening another channel of music distribution (which they have made little to no effort to embrace), there is effectively another market player, and their monopolistic control of supply/price is no longer possible.
Likewise, the whole model of selling CDs has been turned on its head. How many of y’all own a CD wherein you only like 1, or maybe 2 songs? It’s gotten to be an epidemic where one hit song is used to push a load of crap at increased cost. Why should I have to pay $20 to get ONE song? And why should I be forced to pay good money for a song that I can’t play on my MP3 player (without breaking the law by circumventing copy protection)? This case is more about technology out pacing the big-content industries’ ability to keep up, and now they are using their leverage as the big player in the market with loads of cash to legally quash any upstarts.
I believe that the music profession should be a 50k - 150k/year job. And it is, if you consider all musicians in aggregate. For every Britney Spears or Metallica, you’ve got 50-100 people/bands with arguably equal (or greater) talent who never get their shot. The availability of cheap/free distribution by P2P tools promises to level that playing field, bringing salaries out of the stratosphere and reducing the variance, while simultaneously increasing choice which can only benefit both the public and the artists.
And don’t believe for a second that the “artists” are the source of all the content companies concern. While they do sink a reasonable amount of cash into the scouting of talent, production of a record, marketing, and distribution, you can’t tell me that those costs outweigh the profits they’ve been raking in. From the statistics I’ve seen, the record company gets something like 70% of the proceeds from each sale as direct profit. The artist, by comparison, sees less than 1-5%. I’ll grant that the production/distribution costs are substantial, but I doubt they’re that overwhelming, and they could circumvent most of the distribution costs by moving to a P2P-based distribution model.
I totally agree that downloading and distributing copyrighted material is illegal, and that people who actively distribute it should be fined a reasonable amount (like, say, $2-5 per song, instead of the $50+ per song the RIAA is currently pushing). However, I think execution and/or jail time for the mere possession (without distribution) of such files is more than a little extreme, and prosecution of a company that commits no wrong-doing for the actions of people that use their product is unconscionable.
Ultimately, it will depend how “promoting” is interpreted by the courts. If blatantly advertising that you can download free music illegally is all it covers, then I don’t foresee a big problem. If not spending egregious amounts of money to kowtow to the demands of big content is sufficient to indicate “promoting”, then I think our country is in serious trouble. We will see innovative technology companies leave the US for more legally favorable locales. It will see eminently useful F/OSS technologies destroyed due to lack of interest in crippling the software at the request of big-content and/or lack of funding to fight the issue in court. It will force creative individuals in technology to “ask permission” from the established content hierarchy before they can effectively create.
Exacerbating the problem is the sorry state of intellectual property law. I believe that the copyright terms are unreasonably long. Nothing produced since the 1930s (!) has entered the public domain. Copyrights were intended as a means to give inventors/creators a means to profit on their invention for a limited time, not until the end of eternity. And I don’t doubt that when a key copyright is about to expire, there will be another Bono Copyright Extension introduced, effectively making copyrights permanent. I’m not saying to get rid of copyrights altogether, but under the original copyright rules, music from the 80s would be public domain already, while under the current rules, they won’t be until sometime in the 2070s, if then. You tell me if the Bee-Gees need a guaranteed income that long.
I also believe that the unreasonable copyright terms are stifling our national creativity, forcing us into a consumer model where we are mere puppets designed to consume what drivel is thrown our way by the big cartels. We are unable to create anything too similar to anything created within the last 75 years for fear of infringing on a copyright, and as the term grows longer, there will be fewer and fewer avenues of creative thought that will be legally allowed.
Don’t even get me started on patent law.
thoughtwords wrote:
It has to do with freely distributing content for which the distributing party had no part of creating and/or owning. It’s not competition to give away something that doesn’t belong to you to begin with, it is theft.
Not exactly, since the defendants in the case never actually committed infringement. As an example, if you and I are neighbors, and I leave my gate unlocked, and someone manages to sneak in through that gate and subsequently steals from your house, can I be charged for that theft? Or can I only be charged with the theft if I mention offhand that I don’t like locking my gate? Or only if I put up a big neon sign saying my gate is unlocked?
By the same token, one could argue that a car manufacturer “promotes” speeding by making cars that go fast, and then advertising that those cars are fast. Virtually every car commercial I see has cars travelling in excess of the speed limit. Does that indicate “promotion” of violating the speed limit?
Or how about the gun industry? They make an armor piercing bullet, which can be used to kill armor-wearing police officers. Is it enough that the bullets exist (despite their non-criminal uses) to make bullet manufacturers liable in the deaths of police officers? If they ever admit that armor piercing bullets can be used to kill police officers, is that sufficient? Or only if they put out a big commercial advertising “the Cop-Killer”?
Do not doubt, we have just given a stick to the bully on the street, and all that remains is to see how big that stick is.