Grokster's Problem
Yesterday, the US Supreme Court held its hearing on the Grokster case. The plaintiffs (Hollywood) assert that Grokster (and by extension all other free file-sharing services) is solely organized for the purpose of stealing copyrighted material. They have a strong case.
But the real question is not Grokster, but the implications that a decision in favor of Hollywood would have, calling into question any technology that could have substantial uses for recording or distributing copyrighted works without permission. Additionally, there is the accurate observation that Hollywood is using the law to suppress alternatives to their business model instead of adapting to changing technologies.
I see three possible outcomes, and I don't like any of them. In order of increasing distaste, these are:
- The Court rules that entities that are exclusively engaged in mediating theft, where all ancilliary uses of such systems are minimal to nonexistant, are liable for their user's infringement, but that a finding of substantial non-infringing design or use is a defense.
I don't like this because it creates uncertainty in the marketplace and may make the creation of such systems and devices more difficult and economically challenging. On the other hand, such a ruling would encourage Hollywood to embrace digital technology to prevent a content vacuum from supporting unauthorized distribution on incidental or awkward channels. Bootleg videotapes could never compete once Hollywood started selling quality versions at reasonable prices.
- The Court rules broadly in favor of the defendants, essentially stating that there is no meaningful copyright protection in the digital age, and that any smidgen of legal use is sufficient to cover for all other uses.
In this situation, Hollywood's only recourse is locking up their content in ways that thwart unauthorized distribution while changing their business methods so that there is little need for services such as Grokster. It is not clear that Hollywood can succeed in this. Nor is it clear that consumers would be willing or able to deal with the protection systems required, further encouraging use of underground networks.
- The Court rules that only technologies whose uses are subtantially non-infringing (the Betamax standard) are immune from liability for misuse.
This would be an absolute horror as Hollywood would be empowered to obstruct, delay, regulate or suppress any technology which might be used to distribute unauthorized material. Hollywood's history is that not only do they do this (having fought television, cable, videotape, audiotape and now computers and digital recording), but that they do this when it is to their economic disadvantage. When forced, they have inevitably found business models that made them far more money than ever, once they embraced the objectionable technology. It is unlikely that devices such as TiVo, iPod or even DVD recorders would have been allowed to see the light of day if Hollywood had this pwoer. The slow rollout of HDTV, crippled by Hollywood mandates, would be the model.
But all of this begs a question. Why is it that there are so few noninfringing uses for Grokster? The answer, of course, is in Hollywood's successful campaign to avoid having any of its works ever enter the public domain. There is no content for Grokster to legally distribute.
Until 1976,
copyright law protected works for a maximum of 56 years. Were this structure in place today, all works created before 1950 would be in the public domain, and Grokster's non-infringing uses would be manifest.
But Hollywood wanted to keep control of their audio and video works, so in 1976 "work for hire" compositons had their copyrights extended to 75 years. This would today have the public domain bar at 1930, which is arguably the beginning of the audio-visual recording age. Grokster would have some use, albeit marginal but growing, in distributing this content.
But Sonny Bono and Disney didn't want even that, so in 1998 Congress extended existing and future copyrights another 20 years, making it so that only works created before 1910, or whose copyrights had previously lapsed, are freely distributable. Hence Grokster's problem and the difficulty of its strict defense. The Bono Extension was challenged in 2003 (
Eldred v Ashcroft), but the Supreme Court allowed it, as only infinite protection is Constitutionally barred. The Court did not view a 95 year copyright on, say, MS-DOS, as infinite.
While I fervently hope that Hollywood does not prevail in the Grokster case and innovation remains protected, until the copyright act is amended to restore reasonable copyright terms, we are going to see more and more of this, both infringement pressures and attacks on technology capable of infringement. IMHO, copyright terms longer than human lifespans
are infinite.
See
ScotusBlog,
Justin Levine, and
Patterico for further commentary.
Posted by Kevin Murphy at March 30, 2005 11:12 AM
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