Perspective: Why punish the technology?

"Grokster and StreamCast are simply digital-age versions of the record sellers or dance-hall operators that, when facing liability for failing to supervise or control the infringement from which they directly profit, seek to evade that liability by leaving the dirty work to others."

Hard words, but entertainment lawyers are paid to be nasty. So it was that a brief they filed with the Supreme Court this week predictably portrayed the file-swapping companies as the antithesis of all that is holy and right. The legal paperwork was submitted in advance of a critical March court date when they will again try to get the court to shut down digital file swapping.

But in its zeal to put the likes of Grokster and StreamCast Networks out of business, the entertainment industry's challenge might lead to a change in the law that renders potentially important technologies stillborn. More about that in a moment.

Ever since Napster first popularized Internet file swapping in the late 1990s, Hollywood and the music studios have viewed peer-to-peer technology as a license to steal. The content industry won its famous battle against Napster (which closed its doors in 2001). Victory was declared, but digital file swappers easily found other peer-to-peer sites.

If a ban on P2P technology had existed in the late 1990s, the MP3 player industry would never have come into being.

The industry pressed its legal attack, but a decision by California's 9th Circuit Court of Appeals last August unexpectedly upheld the validity of P2P file-sharing services. The court found that providers of online file-swapping technology could not be held liable for aiding copyright infringement, in a decision that contained shades of the Sony-Betamax decision two decades earlier.

The entertainment industry was livid. How could the law allow companies that damned well knew they were facilitating illegal file swapping to stay in business? That's where the Betamax precedent comes into play.

In 1984, the Supreme Court determined that Sony was not liable for copyright infringement just because its Betamax video tape recorder might be used by people engaged in infringing activities. The content industry has been itching to knock down this decision ever since. Now it has another chance.

"There aren't any technologies that cannot be used or abused to circumvent the intentof the law. The real question is how do we avoid acting like obstructionists and preserve the right of content creators <--- note I didn't say content owners."
--Michael Bontick

Here's the problem: The law can be a blunt instrument. What's to avert an overly broad ruling that inadvertently prevents a future technology from ever coming into being? Most of the songs that ran on the early crop of MP3 players came from illegal music downloads. If technology that flourished because of customers' illegal activity had been banned in the late 1990s, the MP3 player industry would not exist today.

Truth be told, I've had a tough time trying to decide who to support in this cat fight. I roll my eyes whenever senior executives at Grokster and StreamCast claim they don't know how their technology gets used. They'd have a better chance convincing me there are huge stockpiles of WMD hiding in Laura Bush's armoire than to insist on pleading ignorance.

I still can't bring myself to root for the control freaks in Hollywood. The power brokers who run the show are so focused on the piracy rate part of the story they keep missing the bigger revenue growth rate takeaway.

So they make up a cock-and-bull story that Grokster and StreamCast exert the same kind of centralized control as a Napster. In fact, Napster got shut down because it owned and operated servers that facilitated illegal file swapping.

Truth be told, I've had a tough time trying to decide who to support in this cat fight.

Why punish the technology because some people use it for unlawful means? Speaking as a consumer (and occasional file downloader--legally, of course!), it should be as easy to use content legally as it is illegally. Case in point: the flourishing business that grew up around online music stores.

The entertainment studios took forever to bless the concept. That opened the door for Apple Computer CEO Steve Jobs, who moved on his hunch about how the future was being reshaped. Apple developed an easy-to-use online music site, and that's why it boasts millions of music customers today. (Heads should be rolling at places like Sony, EMI and Universal.)

Ever since Napster got closed down, the content industry's strategy for dealing with the peer-to-peer challenge can be summed up in three words: Sue the bastards. Everyone of sane mind can agree there's a need to address digital piracy. But how about trying something more nuanced than a sledgehammer approach?

Biography
Charles Cooper is CNET News.com's executive editor of commentary.

More Perspectives

[ordaj]

Charles, what you need to do...

...is set up a PAC like your fellow perspective writer, Patrick Ross, and his wonderfully "neutral" PAC, " Progress &#38; Freedom Foundation."

<a class="jive-link-external" href="http://news.com.com/File-sharing+battles+leave+us+out/2010-1071_3-5551946.html?tag=nefd.ac" target="_newWindow">http://news.com.com/File-sharing+battles+leave+us+out/2010-1071_3-5551946.html?tag=nefd.ac</a>

That way you can spout off from the "middle" ground with the full support of industry.

(Pssst, plus, they'll give you money.)

[P Ross]

Not a bad idea

Actually, "Orda Hackney," I agree with the vast majority of Coop's piece. Both the P2P industry and the content industry naturally are going to pursue the most extreme approaches because that's what suits their business models. Coop recognizes the disingeneousness of Grokster execs, but he also wants to protect MP3 players and the like. I agree.

I sympathize with the plaintiffs in Grokster because it's a pretty clear-cut case -- Grokster's business model simply doesn't work without infringing downloads. But I've been asking my friends in the content industry, "What do you do when there's a P2P network that's not for profit, and where the level of infringement is lower?" They might say we should apply the same liability rules; I'm not sure I could support that.

Coop and I come at this from slightly different biases (my primary concern is protecting intellectual property, his appears to be protecting technology) but I think we both recognize there is room for debate here. The responses I saw posted to my piece yesterday weren't debate, they were diatribes.

[P Ross]

Not a PAC

Since you've erred twice on this, I should point out -- PFF is not a PAC. A political action committee raises money and gives it to candidates. We are a 501(c)3 non-profit think tank. We do scholarship on policy issues. We don't give any political donations, and we don't lobby. Feel free to visit our site at www.pff.org to learn more.

[rshelton3000]

What about gun control?

You can't tell me that the gun manufacturers don't know that their products are being utilized in many and varied nefarious schemes such as bank robbery, murder, and kidnapping. You can't tell me that car manufacturers don't know that their products are being used in such illegal activities as driving while intoxicated, kidnapping, robbery, and drug running. You can't tell me that the large pharmeceutical companies don't know that their products are being used for illegal purposes by certain members of our population. You can't tell me that the oil companies don't know that their products are being used by all manner of shady customers for various illegal activities such as drug manufacturing, running drugs, kidnapping, and arson. So why aren't they doing something to stem these activities? Why should only certain companies whose products interfere with the profits of other large entertainment companies be targeted? Why not instead have a law that if your company's product could POSSIBLY be used to aid and abet an illegal activity then that product should be pulled from the market? This would solve all our problems.

Thank you for letting me rant and rave.

R. Shelton

Nice idea...

But it only works in theory. Using that logic, I can't think of one single product that wouldn't be able to be pulled from the market. Paper, pencils and pens? People can write their terrorist plots down and send them as message to other people. I can break into my vehicle if I lock my keys out simply using a spoon and knife (I kid you not, I've seen it done). Generalized laws are too dangerous and unwieldy, as good of an idea as they may seem.

I hope you are joking...

To quote: "Why not instead have a law that if your company's product could POSSIBLY be used to aid and abet an illegal activity then that product should be pulled from the market? This would solve all our problems."

Well pens can be used to write lies and brains can (occasionally) be used to concoct illegal schemes... Lets outlaw thinking (I believe intelligent thinking MUST already be outlawed) and all written communication.

Please lets not let the lowest possible common denominator dictate or cause policy to be dictated to the rest of us.

[markwww]

gunn control NO WAY

Well first of all you already have laws on the books to take care of the problems with firearms. Secondly, you want to punish law abiding citizens,like the RIAA article where everyone is guilty NO WAY. People that carry firearms in America have stopped many crimes, in progress shots felons that had taken women and kids histage and protected their neighbors from the Criminal element. Police cant be every where at one time. COuntries that have banned guns have crime rates that have gone up over 2,000 per cent and are not reported but they do, the police dpeartments have dropped gun crime rates cause it has been so bad in countries that do not allow guns that the government can take the people over andmake slaves out of them. IN Arizona where you can have a gun freely on your body in a belt the crime rates have dropped to ZERO repeating again ZERO Write the Sheriff And ask him personally. Violent crimes where people live and are armed have scared the crooks so bad in areas that they go to where they know people dont have protection and fire arms, and commit more deadly crimes. I KNOW FOR A FACT about this, cause I re searched it too. Every Country and every where in History where the bleeding heart liberals screamed no guns and back in history every colapse of every country happened when they threw their guns away. They were taken over by not only their government but other countries.

Guns protect people, it keeps criminals away it keeps the LEGAL PERSON FREE FROM BODILY HARM. It keeps kids safe it keeps families safe.
Mark A Veteran

even clothes and food can be used for purpose not meant for

Clothes and food can also be used to kill others, so let us take the same action for them also.

Blunt Instrument, Indeed

Because it can get weirder. What about interchange formats? Sony announced www.collada.org, a file format for interchanging game objects. Immediately gamers began to discuss getting and playing with copies of Lara Croft. Illegal? You bet. What about the millions of midi files out there. Midi IS the open source of musicians, particularly those teaching themselves to play popular songs and to compose in given styles. Is that stealing? Some say yes. Certainly when EMI went on its rampage some years ago to get midis of popular songs removed from web sites, those lawyers thought so. On the other hand, the midis did more to improve the chops of garage bands world wide than any single innovation has. And better bands means better music for the industry. Good musicians knows this. Good gamers know this. The artists at large know this.

Only the lawyers miss the point. For that reason, there must be more open source law and tools for filing briefs. Let the amateurs clog the courts the same way prison inmates do. All perfectly legal... and deadly to the system of prior restraint.

It is not lawyers that miss the point...

Lawyers don't care, they are just paid advocates.

The people that care are the ones with outmoded business models and (potentially) decreasing revenue streams.

Analogy: Buggy whip manafactures banding together to prevent automobiles from being conceived, designed, and manufactured.

There aren't any technologies that cannot be used or abused to circumvent the intentof the law. The real question is how do we avoid acting like obstructionists and preserve the right of content creators &lt;--- note I didn't say content owners.

The whole value chain needs to be re-worked and dragged forward into this century (probably kicking and screaming... much like myself into 'middle age')

[Rocker452]

It's all about money

at least that is what they make it sound like. If it is all about money then they are wasting alot sueing file sharers. They sould explore ways to use the technology to their advantage. The betamax case is a good example of the industry trying to kill something and when that failed then they found ways to use it to their advantage. They claim that file sharing is hurting cd sales, which are down slightly,but i don't think filesharing has that much of an impact on them. The bigger reason I think is the growing popularity of online mp3 music stores. More people are using mp3 players instead of cd players, or are just burning their own cds from their mp3 libraries. I reckon it'll all work its way out, I just hope some sanity prevails.

Bad Music Is The Killer App

Actually, it is more likely crummy artists and bad music. I was at a theatre rehearsal last weekend. The 16 year old kid on the floor playing my guitar was playing "Fire and Rain". I told him I played that to get girls when I was his age and asked why his generation doesn't have their own music? He said, "Because it's all junk made with computers and sucks."

Computers aren't the problem. Lack of originality and maybe some technique are. Artists have some decisions to make too. They may not like them but the technology has implications. Artists master the technology; they don't have to use it to hide the lack of talent. They can use it to make it better.

It isn't ALL about money. It is a lot about frustration. The lawyers are doing what they have always done. The best approach is to remove them from the equation, accept a bit less than a "Superstar salary", remember who feeds us (listeners: they came to boogie, not bach), and embrace the technology for every advantage it offers without ripping off the other artists (midis offer lots of riffs; sampling is bad unless you work with the original artist), don't claim what ain't yours.

For crying out loud, have something to say, or at least make it fun. We have access to audiences of unprecedented size who are starving for good music and good vibes. As Ray Davies says, "Give them what they want."

what about the obvious...

anyone can use IIS to distribute copywritten material. No one is going after Bill Gates. No one is up in arms over the FTP protocol. SSH, E-mail, News Groups, IRC chat, is'nt it obvious?

You don't file suit against "Verizon" because "Drug Dealers" use phones.

The entire RIAA versus P2P is just a Cash winfall for Lawyers.

[bobby_brady]

It's time to get even with the RIAA and MPAA

I hope to God that everyone in the entire world shares their collection of mp3's and mpeg. I'm so sick and tired of the RIAA and MPAA paying off politicians to try and outlaw p2p.

I'll never purchase a new CD or DVD from those thieves agains.

Technology created the recording industry...

Technology (via Thomas Edison) created the recording industry (phonograph) and the "industry"
has been evolving and changing ever since.
From records to radio to reel-to-teel to 8 tracks to cassette tapes to music telivion to VHS to CD's to DVD's to Digital, with each change record companies have made more and more money in response to the newest technology.
The record companies that cannot grasp this deserve to die; and the technophobe Ceo's who cannot grasp the direction of the market deserve to be sitting on the street collecting change in a tin can.
Technology created the wealth of these companies and technology may one day take it all away. A wise course of action for the recording companies would be to invest heavily in the blacksmith industry. The blacksmith indusry is highly repected and if anyone wants to do anything to cut into your profit margin you can always sue.

Well Said!!

Excellent commentary. I couldn't agree more.

[gegeddis]

Unacceptable consequences

This lock on distribution and perpetual copyright are totally undermining the intent of the Framers in writing Copyright into the Constitution. Check out this link:

<a class="jive-link-external" href="http://www.wired.com/news/digiwood/0,1412,66410,00.html?tw=rss.CUL" target="_newWindow">http://www.wired.com/news/digiwood/0,1412,66410,00.html?tw=rss.CUL</a>

The public domain is being robbed. In this case, the ability to record history for prosperity is being trashed so a few fat entertainment executives can maintain their Ferraris and their palaces. There has to be a better solution for "incentivizing" creators.

George

[gegeddis]

Typo...

That was supposed to be [b]posterity[/b], not [b]prosperity[/b].

George

[cgamboak]

Dont buy singers that ban MP3

I broke all my metallica CDs and if is playing i change station.

We will pay when the value return to be the real value of a song, but $18 for an albun with only one good song, no thank you.

go to the technology side

i can't understand what makes you take the middle road ... knives are used by murderers, but the law doesn't ban the manufacturers for making them; fire is used by arsonists but the law doesn't ban match makeers, does it? My point is that technology since the beginning of intelligence has been used and abused. Natural law does not allow the illegalisation of the such abused technology but rather goes farther and looks for ways of dealing with the abusers; and if by natural law you cannot deal with the abuser then you are the illegal party not the abuser i.e. if the normal use of knives was to murder, we would not illegalise murderers ... it would be a norm in society. Thus in the P2P case, if the music industry cannot illegalise the technology as it would appear under natural law and it can't control the abusers as this appears to be the social norm it is only clear that the music industry is engaged in an unnatural act ... the days of the current rights protection structure are over for the music industry. There is only one way ... re-invent.

[markwww]

RIAA MORE DIRT ON THEM

Well here is something not a word was mentioned about. THE RIAA started attacking First on line radio stations, that played not only music, but talk show radio cause they were live over the internet,and di this by hook and crook and pay offs to the president BillClinton who took their money and wrote the DMCA ACT which in its self is so NOT LEGAL there are law suits since the act came into place. THE RIAA came up with the DMCA- and wanted every radio station on the internet to pay them 7 cents a minute per listener hour. Then they wanted 14 cents a minute. and on and on it goes more money for their toes. The RIAA mandated all internet radio stations to pay them back to 1998 even if they were not on the air till the year 2,000. The Riaa said the radio stations on the internet like the ones at live365.com, were professional not hobbies. The Riaa CLASSIFIED EVERYONE as a professional radio DJ and station. The Riaa said we had to make our sleves pay but listeners too. They wanted money for music, your on music which if u had a tiny internet station and had music in yoor machine you had to pay the RIAA.
Then the RIAA wantedto break into computers by making a scanning program which was put into ther own copy of the P2P program everyone uses, and if the RIAA saw music in a computer in files they LEVED FINES against them and wanted so much ,money for each song in the computer, that was paramount to a break in of your home. Then the RIAA hired people from the IRS and gave them guns and pulled guns on people out in california physically stealing their music and they were THE POLICE-- The cops would not stop them they are a BLACK BOOT THUG.

A friend of mine we spent alot of money buying music, We are DISABLED VETERANS,and money is hard to come by so We started 2 online radio stations for the TROOPS over seas,we would dedicate music from a loved one to the Servicemen, and then take call ins and put them on the radio. We did this for the moral of the service helping the military. Cause they do not have a way to really listen to music on the radios they have form America. They did not have radios that can pick up am radio stations. BUT THEY HAD 2 stations online where ther service people could listen,and it was for them.

THE RIAA SHUT US DOWN,they wanted MONEY even if we did not play ,music, cause they said they own not only the music but they crafted a deal with another online serice to make every radio station Professional even if they were doing this as a hobby and receiving no funding,and pay the RIAA THEIR MONEY even if you had all your own stuff . Well the RIAA is nothing more than CROOCKS like the MAFIA,and no better. Now we dont have rights any more
Mark

Sony - Betamax ruling

I also would like to get the Betamax Ruling reverted and also a line added - "If somebody kills, rapes, commits suicide after watching a musical video or listening to a song" then that music company's CEO must be tried for murder/rape. Because it is the same thing, somebody using an invention of another for the purpose it is not supposed to be used.

[bobby_brady]

Government should go after RIAA and MPAA

But I know they will not, as the RIAA and MPAA have paid off too many politicians.

[SharpD0g]

The Internet, Disk Drives, Computers?, typewriters? pen and paper

I would say that the inventors of the internet must have known that the technology could be used for illegal purposes. It is ludicrous to assume that makers of disk drives or computers do not know that their products could be used for illegal purposes (including copyright infringement). What about typewriters or simply pen and paper? Should we go back to the stone age because of a few overly greedy millionaires? I realize that the artists should be compensated for their work but many, if not most, of them are embracing the new mediums. It is the moview record companies that are the Luddites here.