Blog FeedThe Grokster case - Fallout
I will admit this right away. I’m not a lawyer, judge, or legal expert of any kind. If I get anything wrong here feel free to let me know if you’re more knowledgeable than me for legal matters. I’m going to take Ben Franklin’s advice and doubt my own infallibility and say that while I was hoping Grokster would win, the US Supreme Court issued a good bit of case law in MGM v Grokster. My only qualification for making commentary is as an interested bystander in such things and as a amateur historian. Everyone feared that they would overturn the protections granted to the consumer in the Betamax Case and those are safe.
First off it’s important to understand what the court actually said. The ruling didn’t do anything to outlaw Peer 2 Peer and it doesn’t place an onus on creators of technology to guess what people may or may not do with their products. The distinction the court drew in this case wasn’t a striking down of the Betamax case where Sony’s VCRs were ruled legal despite the potential of the product to be used for illegal purposes. The test the courts seemed to have established is that if a company advertises it’s intent as to be used for illegal purposes then that company can be held liable for contributory damages in the illegal use of their software. You can also be held liable for things like advising people on how to find illegal files etc. Basically you know you’re in hot water when you’re advocating theft via your product. You can help yourself a long way by trying to mitigate losses through reasonable steps. This is the one danger zone of this ruling because it’s open for interpretation. It’ll be a major point of contention how the lower courts interpret and apply the amount of counter-measures that need to be applied to keep pirates at bay.
So, who does this effect? Well first of all anyone who works at any company making P2P software—at least the brand name versions, should probably dust off their resume. I can hear the army of lawyers salivating at the mouth at all these law suits coming. I’m actually somewhat surprised they didn’t have a huge volley of them ready for just such a ruling. The average consumer may be effected by this but most of the internet junkies I hang out with have long since moved on from P2P as a form of data distribution. First off most of us have jobs now, or some means of paying the bills and can afford to buy more than we could when we were sixteen. Second of all if you’re not buying lots of stuff then you can easily pirate stuff these days without the need for a centralized P2P indexing service. Bit Torrent will be pretty much unaffected by this decision as even if some of the clients were attacked by the industry there are a legion of products out there some of which are Free Open Source Software. And then of course there is the hardcore piracy easily available on IRC and FTP servers that are also pretty much untouched by this ruling. Even if you need a P2P server with indexes ala Kazaa or Grokster, then you’ll probably be able to find one that’s based in Eastern Europe or the Far East , somewhere where the laws are more friendly to this type of software. So most of us won’t really be affected by this ruling.
Which brings me to the entertainment industry, while they may see this as a big victory they’ll soon realize that it’s nothing more than a hollow victory that will only protect them from the most casual pirate who’s completely not tech savvy. I’m sure if I had representatives from the movie and music industries to talk to they’d acknowledge this fact but they’d say that they have to do something to stem this tide before they’re overrun. They’re seeing declining purchases and piracy seems a good scapegoat because they can’t do anything about the real problems. They can’t address the cultural shifts that are leading less people to go to the cinema. I’ll leave this discussion for my next column however as it’s somewhat complicated. The solution to their problem is to stop trying to put the genie back in to the bottle because in the end technology always wins. By the time they finally beat back Napster the Peer 2 Peer companies were already circling the corpse and drawing in the Napster users. By the time they gained the right to even sue P2P software companies for the facilitation of theft with their software, the tech people in the world had already thought up a solution that can’t really be attacked that way in Bit Torrent. By the time they manage to come up with a plan of attack that can put a serious dent in Bit Torrent someone will have thought up a new way to distribute information via the net that’s faster and better. So what’s the answer? Well embracing digital distribution seems to me to be the last “best chance” they have. The music industry is already moving in that direction via Napster and iTunes and it actually seems to be having some effect. Piracy is down a little bit but there are a lot of people buying music digitally. I know I switched from Kazaa to Itunes as soon as the option was available to me. Why? because I’m not a thief for one thing, I just wanted my music in a song by song approach more often than I wanted CDs. Well the same thing is true of movies, and games. I’d much prefer a digital copy of these things than the extra junk that comes with a analog medium. I’m not down on you if you still like going to the store, but I want my data digitally distributed. I don’t buy a lot of movies or music in the analog form and I never have but I’ve been quite happy with the songs I’ve bought on iTunes which is fast approaching 100 in six months, or more than I’d bought on CD in the previous 6 years.
The bottom line amounts to this: the pirates are always going to be there, if someone wants to pirate it’s always going to be an option to them but you can mitigate this risk by making it easier to buy something than it is to steal something. With iTunes you get exactly what you want, a preview, a competitive price, and a hassle free experience. This creates customers out of people who may have considered piracy for some of their needs and in the long run will minimize piracy about as much as it’s going to be minimized.
2nd July | Reply
I am thinking, perhaps, that they already understand that this is the case. I think they know that they will never get ahead of the tech-savvy users, but I think they also know that casual pirates are the people who they are more likely to get through to, and to convert back to buying CDs. So I’d say they’re just striking where they can, grabbing on to whatever they can find.
However, I would say that if any casual pirates felt restricted enough, they may end up becoming tech savvy themselves in their quest for free music.
3rd July | Reply
Yeah definitly. I think they are making gains already. The mass public seems to find it enthralling to inform me that I can “get arrested for downloading music”. The record companies honestly do not care if the tech pirates steal it. But once the theft becomes so easy and/or blurred that Joe Music Listener can do it they get nervous.
My parents used to use Napster but once it went down they have stopped. Bit Torrent is not really a user friendly program. Although they may still go after the large “servers” who make it available.
3rd July | Reply
The movie industry does seem to be even worse than the music industry in their attempts to thwart piracy.
Recent cinema adverts now go along the lines of “some people will see this film in pirate but it will be really shitty quality please go to the cinema if you want to see it properly.”
Which really just made me laugh. I don’t get things on pirate but even I know it is ignorant to suggest that all pirate copies of films are low quality.
This is just totally the wrong tack to take.
7th July | Reply
the funniest part about the MPAAs attack is that they’ve got nothing to show for it. they started getting aggressive towards the end of last year, and succesfully sued and shut down a lot of the better known websites hosting films. then this year, cinema attendance is down right across the board. they went from having one of their best years in over a decade, to one of their worst. i don’t doubt that they’ll try to blame the pirates for this years terrible box office, but they made a lot more money last summer when they left it pretty much unchecked. Hollywood needs to realise it has much bigger problems than people downloading their movies, and start offering a service that lets you do just that, legally.