Cliff Notes Version

Here is an experiment at being concise, the highly condensed version of my previous post on the Grokster decision.

This decision by the Supreme Court creates an imbalance in the risk and reward of creating a new P2P technology and makes it a bad bet to even be involved at all. Anyone with enough on the ball to do this work should have enough on the ball to turn their attentions to less risky problem sets.


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.