p2pnet.net News View:- The Supreme Court has allowed the appeal by the US movie studios and record labels against the verdict in their case against Grokster and StreamCast Networks.
This means peer-to-peer companies such as Grokster and Morpheus parent StreamCast Networks can be sued for copyright infringement by the people using their software, if the companies actively encourage that infringement. It also means that the case which had been decided in favour of Grokster will now be retried in Los Angeles, with the likelihood that the P2P networks will be found guilty of copyright infringement. However even though there has been a massive outpouring of comment on the matter, the case does still have to be heard, so although it is tempting to pre-judge the outcome it would be unwise to do so.
Even so, the ruling is a serious blow to unregulated file sharing over the Internet, since it makes it clear that US-based developers of technology and providers of services now have to think about the potentially infringing things their users could get up to, and may find themselves sued if they don’t do enough to limit those uses.
It would be easy to let the decision cast those of us on the side of a new copyright settlement into the slough of despond, but we should not despair. History is on our side, and while those whose business practices and five year plans are invested in the current regime may have gained the upper hand, their day will surely pass.
Sometimes technologies change the world, and while it is possible to resist them for a while the impact is inevitably felt everywhere. The development of the motor car made medieval street patterns unworkable and forced massive redevelopment of almost every city in the world; the Internet has overturned any assumptions about how content is distributed and made the old ways of remunerating artists redundant. We’re just living through a period of change in which the old order still has sufficient political power to get its way in legislatures and courts.
Some of the criticism of the record and movie industries has compared their actions to those of Cnut/Canute, the medieval english king [see en.wikipedia.org/wiki/Canute_the_Great], who sat on the shore and commanded the tide to stop – without success.. We should not forget, however, that Cnut was there to show his barons that there were limits to his power.
Perhaps a better analogy lies in the protection measures being proposed following the devastation caused by last year’s Indian Ocean tsunami.
One idea, based perhaps in the observation that offshore coral reefs sometimes dampen a tsunami to the point where it causes minimal damage when it comes ashore, is to build walls out at sea which can hold back or at least divert the wave train.
This is, of course, a ridiculous notion. Coral reefs work partly because of their sheer size, which a human engineering project would find hard to match and partly because of the complexity of the reef structure itself, which will not be replicated in a concrete wall. It may also be that reefs develop in areas where the seabed topology allows them to survive such events as tsunamis – that is, those reefs that dampen and therefore survive tsunamis do so because they are the ones that remain after those that are less effective at the task are destroyed.
When a tsunami arrives the wall will either be overwhelmed by the onslaught of water, serving only to add large blocks of concrete to the damaging potential of the wave, or it will survive, creating a buildup of water behind it which will eventually pour over the top, doing just as much damage before dashing those few who survived against the very wall that was mean to have saved them as the water flows back to the sea. Either way, those onshore lose.
It is the same with this week’s judgment. Either it will be overwhelmed by technology in the short term, and be abandoned in practice within a matter of months as improved p2p and content distribution technologies make it unenforceable, or it will remain in place and cause massive damage to innovation within the US technology industry. If this happens then US IT companies may even join the music and movie cartel as casualties when non-US systems are developed and made available over the Internet.
What the Supremes have told us, more clearly perhaps than they realise, is that a new copyright settlement is needed, one which finds an acceptable balance between the interests of creative individuals and the companies that market their work and the general public, one which returns to the original idea of copyright as a deal struck between society and producers that provides clear benefits for society while encouraging creative output.
Over the past twenty years we have moved to a view of copyright as a form of property right, where the singer or author or songwriter has some absolute right to control how their work is distributed, used or exploited, but it was never meant to be so.
Perhaps the Grokster judgment will highlight the ways in which the record and movie industries have abused the idea of copyright, and help begin a groundswell of support for a return to the original approach – a groundswell which, when it reaches the shore, will indeed overwhelm the current disposition.
But whatever happens over there, at least here in Europe we can continue to develop innovative technologies and get them to market. Who knows, maybe Apple will even go for a London stock exchange listing when they relocate their corporate headquarters from Cupertino to Cannes.
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