Earlier this week the US Supreme Court heard the MGM v. Grokster case
concerning the legality of Peer-2-Peer (P2P) software. Lower courts have found the software developers not
liable for user activity, and some in the movie, music and software
industries are anxious to overturn their findings. Many have billed this
case as pivotal for the Internet along the lines of the Betamax case, which legalized VCRs despite copyright concerns. Observers on both
sides of the issue have argued in the most widesweeping terms that
their future will be irreparably damaged if the ruling were to be
adverse, but I'm not sure it matters one bit in the grand scheme what
the justices finally decide.
On one side of the aisle, media companies are wailing that their
businesses will wither away and die if P2P is permitted to remain
legal. It's undisputable that a significant attraction to P2P today is
the download of copyrighted materials. As
the principal in a software
company (Linspire) and an online music store (MP3tunes), I want people
to pay for intellectual property such as music, movies and software. But it's hard to have sympathy for an
industry that has attacked every new technology in court from the piano
roll, to the VCR, to the cassette deck, to portable MP3 player with the
same rhetoric that "poor artists will starve" and asking courts to ban
it. Thankfully, the courts have allowed these technologies. And our
society and businesses are better each time the industry
morphs to take advantage of these new opportunities to generate even more
money.
On the other side, technology companies and civil libertarians are pleading that
innovation will grind to a halt if every inventor has a death sentence
of potential copyright violations hanging over their heads.
Here I have somewhat more sympathy given my experience with MP3.com.
In
our case, one judge ruled against us and the penalties were so severe
due to harsh copyright laws that have been pushed through Congress,
that we could not even put up a bond to appeal. No other judge or
appellate court ever heard our case and we were forced to settle. (It
should be noted that it's often that the higher courts reverse lower
courts
just as in the Betamax case, where lower court ruled the VCR illegal
and
higher courts found otherwise.) Noted legal scholar Lawrence Lessig
cited the MP3.com dilemma in his brief in the Grokster case.
In spite of these strongly voiced arguments and seemingly big stakes
for both sides, I'm not sure it matters what the nine justices finally
rule. Technology moves so rapidly that often times by the time courts
rule, technology is already deeply entrenched as to be unmovable. When
the final ruling on VCRs was handed down, about 50 percent of U.S. homes had a
VCR. It would have been impractical for the Supreme Court to find them
illegal devices and send police to half of American houses. I believe
P2P is in a similar state with widespread usage and applications.
Hundreds of millions of software programs have been downloaded and the
technology has been implemented in many purely legal applications.
Linspire uses P2P to distribute many terabytes of our software in a
cost effective manner
to paying customers when our own servers are
overloaded. Our newest version, Linspire Five-0 has BitTorrent P2P
technology built in it to help people easily access authorized
materials such as legaltorrents.com. Unquestionably, P2P is firmly rooted in
many software products and companies, making it impossible to put the
toothpaste back in the tube. And perhaps in response to the legal
uncertainty around the Grokster, the next generation of P2P programs
such as BitTorrent and emule are
completely open source with no corporate backing, making a legal target
non-existent.
Even
if the Supreme Court outlawed P2P, this is one time when an American
unilateral decision will not be effective. The U.S. may be a world
power
in the global political theater able to enforce its will through sheer
military might, but we hold no such dominance on the Internet. It is
the great equalizer with around 150 countries connecting to it and able
to implement their own laws. A ban on P2P in the U.S. might slow things
down, but
it would not halt developments elsewhere and would simply hand the
economic opportunities to other countries. Online gambling is a good
example. The U.S. allows gambling in state lotteries, riverboats, Las
Vegas, Indian reservations, Atlantic City, and
elsewhere, but clings to the absurd position that online gambling is
illegal. Rather than prevent Americans from gambling, they have simply
pushed it off-shore where the U.S. generates no tax revenues and has no
policing ability. New non-U.S. companies are not only providing
traditional betting options online to Americans, but innovative new
approaches such as Betfair - a sort of
eBay for betting - are emerging. U.S. policies against online gambling do
not meaningfully impede online gambling, but simply give the economic
benefit to other countries. The same will be true for P2P- the only
lasting impact will be to block the U.S. from enjoying the economic
benefits.
The Supreme Court is expected to hand down its ruling in Grokster in
July.
Undoubtedly, it will receive incredible attention whatever the
ruling. But the decentralized nature of P2P, and the global nature of
the Internet, and widespread usage means it will have minimal impact on
P2P adoption or usage. We've made a version of LinspireLive!
available for free via P2P so people can experience Linspire
directly from
a CD without installing the OS to see how well it would work on their
computer. One snazzy new feature we've added is that you can also try
CNR (click and run) while running from a CD with no registration or
payment required. With this one free download you can experience
Linspire Five-0 and CNR. I hope you'll give it a try while P2P is still
legal in the U.S.
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