I’ve been busy and haven’t been able to sit down to and post this in the last few days. I think a lot of the analysis of the Supreme Court decision in the Grokster case is highly flawed (as is the decision itself, I think.) For example, Jack Valenti on the episode of Radio Open Source about the case made a statement to the effect that “this will just mean that creators of these technologies will have to respect our property rights.” I’ve seen numerous bloggers and/or columnists say about the same thing, that it only affects people creating new technologies unless they aren’t planning on “walking the straight and narrow.”

The vagaries of the decision are such that no person interested in creating a new distribution technology or platform can actually be sure if they are in compliance or not without lots of lawyer dollars involved. People seem to think that won’t have a big impact, but at the same time no one was able to confidently say whether, for example, Bram Cohen and Bittorrent would be safe or not. Realistically, do you expect any innovation on this front to ever occur again on US soil?

Let’s think it through. Anyone who has the brains and motivation to create a new P2P or distribution technology has the brains and motivations to create any number of projects, and almost certainly has a number of potential ideas to pursue. What American inventor under these circumstances is going to put their time and energy into a project that may get sued if they don’t put in the right safeguards or fail to sufficiently suck up to the Big Media organizations? Anyone with sense will either get the fuck out of the United States or else work on a different idea. This means that effectively this field has died for new work as of this week. There will certainly be new innovations, but it won’t be here. We have ceded the field to China and India and the Ukraine and the Czech Republic and Costa Rica, et al.

I wish someone on that episode of Open Source had more directly presented Valenti with his success ratio of being correct on his alarmist projections of the damage wrought on Hollywood by new technologies. Not only has he been wrong every time, he has been wildly wrong. He claimed Betamaxes would ruin the movie industry and instead they created an explosion of new profits, as did cable and every other fricking thing he has ever fought. Do the thought experiment and think back to what today’s movie industry would look like today if Valenti had won his Betamax fight in the 70’s. Now, the movie industry of 2020 is going to be living that lack-of-growth curve. I can imagine a world where every movie that hasn’t decayed from movie studio neglect would be available for some form of purchase electronically nearly instantly. That won’t happen now. Whatever crazy ass thing might have been will be averted, solely because Hollywood fears that it won’t be king of the new technology.

But, ironically enough, I’m OK with that. In fact, I’m kind of happy about it. I’m happy these turds have finally won one of these ridiculous fights because it is the very essence of poetic justice. They will deserve everything they earned because of it. As I’ve been talking and thinking lately about the split between closed and open culture, I do have a horse in the race. I want open culture to flourish, be it public domain or contemporary creative commons art, music and literature. Every thing that squeezes down on the closed culture creates pressure that can be relieved in the open culture. I want to be able to get Global Frequency as the first “direct to Bittorrent” TV series (for which I’d be happy to pay now for an eventual DVD box set of the whole season). The more the current Big Media oligarchs overplay their hands, the better the open culture looks and the more obvious value it has. Ebooks and music that can be downloaded without punitive DRM, videos that are freely allowed to be shared ala Systm, this is the kind of stuff that will follow on. I can’t wait. Thank you, Supreme Court, for fucking up this decision sufficiently to give the open culture a boost.

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Dave Slusher is a blogger, podcaster, computer programmer, author, science fiction fan and father. Member of the Podcast Hall of Fame class of 2022.

11 thoughts on “Grokster”

  1. Andrew Herron says:

    There are only two words I can think of to sum up my thoughts on this post.

    RIGHT ON! 😀

  2. Eddie Dickey says:

    I’ll respect their rights, if they respect mine. I want to use the internet to publish my podcast and to receive yours (using any protocol that we choose). I was at JavaOne today and learned that Boeing and Verizon will use JXTA (P2P vitual network). I’d like to see Valenti go after Boeing/Military..

  3. Ken Kennedy says:

    Well spoken, Dave. Well spoken.

    May they reap what they sow.

  4. drfishy520 says:

    so does this mean we’ll hold gun manufactures responsible for murders?

  5. Capastorm says:

    I may be wrong, but for inventors it seems that as long as you don’t encourage users to use your product for illegal things, or even better “”discourage” them, your in the clear.
    And for software you can do that via the agreements section that everybody skips…
    I don’t think that’s gonna stop or hurt new (american) inventions. But from now on it’s up to the blogosphere to point out “other” cool uses of these new inventions if you now what i mean…

  6. dave says:

    Capastorm, you are doing the same thing as all the people pissing me off are. How exactly is anyone going to know if they are “discouraging” sufficiently? You may put in the README in huge letters “DO NOT VIOLATE COPYRIGHT WITH THIS”. Will that be sufficient to keep the MPAA from suing you? No one can know, so only an idiot would pursue it from there.

    Do this thought experiment. You are Bram Cohen, and Bittorrent hasn’t yet been released. You have it ready to go right at this moment, the initial release is sitting in a tar on your website. Do you go public with it or not? Compare what you have to gain with what you have to lose. Are those two balanced? Are you telling me that in that circumstance right now, today, you would release Bittorrent and feel good about it knowing that if you were wrong you would incur possibly hundreds of thousands of dollars of legal bills? Even if you put lots of language in the docs and the website discouraging illegal use, would you bet the well being of your family and the concrete tangible harm it could do them against the abstract intangible good it could do?

    I’m saying to stop talking fricking theoretically about this. Given the choices, would you release any form of P2P software of any kind this morning? Is there any amount of discouraging language you could put in there and feel confident that you wouldn’t under any circumstance be sued into bankruptcy by the MPAA? If I were Bram in the above thought experiment, I would not released Bittorrent today, not as a US citizen on US soil.

  7. Capastorm says:

    Sharpening our knives ar we? Actually i’m with you on this one, but i don’t feel so blue about it. First make sure your product is a hit, then investors will approach you and give their expertise and they have (legal) contacts and cash you don’t have…
    So far Bram’s not worried, make it Open Source and useful for legal stuff, like he did.

    The fight ain’t over yet: Kazaa is still in a big legal battle as well and the arguments used for the supreme’s court decision don’t seem to work on Kazaa…the battle continues;1868307559;fp;2;fpid;1

  8. Tilted Edge says:

    I like the idea of giving up the battle. Let the babies have their way and like you said, we will create our own universe. Would it be so bad if innovations come from outside the states? The whole country has been going down the toilet for years so we might as well sit back, relax and enjoy the ride.

    Today O’Conner announced she will resign so we can expect a Bush appointment to the supreme court and probably at least one more. As the rest of the world is rapidly getting more liberal, we will continue our idiotic slide into the abyss of blind conservatism and continue to cater to the whims of idiotic religious zealots and greedy corporations.

  9. Ken Nelson says:

    The decision, as I understand it, remands the case back to the lower court. The decision was “You can be sued *IF* the product intends to be used to infringe copyright.” A lot of ambiguity in that statement, but not a KO, though it’s obvious that players in any P2P related endeavors best heed this decision, and it’ll cost, and doubtless will stifle, or at least hinder, availability of new technologies in this area. But, as you say, and here’s the silver lining if there ever was one:

    They will deserve everything they earned because of it. As I’ve been talking and thinking lately about the split between closed and open culture, I do have a horse in the race. I want open culture to flourish, be it public domain or contemporary creative commons art, music and literature. Every thing that squeezes down on the closed culture creates pressure that can be relieved in the open culture.

    I don’t, and wouldn’t, “pirate” something I wouldn’t pay for in the first place. And the ones who make it easy to share their music (Michelle Malone, Gentle Readers, that Rocket City Riot guy, and untold artists I don’t know about yet), are the ones to whom I’ll listen for free, because I can, and then because thay are so good, I’ll buy. And because of their pricing, I can buy more.

    These xxAA people can get bent.


  10. PJ Cabrera says:

    I totally agree with your assessment: any further protection of turf by big media, only makes open culture more attractive. The more big media keeps concentrating on maximizing consumers, the more they will totally miss the growth in independent producers.

    As for the effect of where new technologies are developed, Tilted Edge hits it right on the nail. And it’s not just P2P. Remember the chilling effects of the DMCA as well. Add foreign competition, and you can expect lots of new technology to be developed elsewhere from now on.

  11. PJ Cabrera says:

    “you can expect lots of new technology to be developed elsewhere from now on.”

    Not that this matters one iota in the grand scheme of things. But as the USA economy starts to level off with the economy of the rest of the world (which is what happens in a global economy) prepare yourself for the already xenophobic low- and middle-class American Anglos to show their discontent and bring back “Buy American”.

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