Why Grokster matters (especially to podcasters)
Today's papers all carried stories about the amicus briefs in the Grokster case, so it seems a fitting moment to discuss the case in the context of the new emerging Media Technology industry (exactly what that is, I'll define a little later). It was generally played big that Intel filed an amicus brief in the case. While Intel was an early proponent of P2P (they tried to hijack something called the P2P Working Group, long since defunct), they have not to my knowledge taken Hollywood head-on (they were pretty wimpy on the Induce Act, if memory serves.)
But in Grokster, Intel finally sees the writing on the walls. In their brief, they state:
"Imposing on innovators ... an obligation to anticipate potential uses of their innovations, to correctly guess which uses will predominate, and then to design their technologies to prevent infringing uses (even if it were technically and practically feasible to do so) would stifle innovation and dramatically increase the cost of such technologies and of the ... products based on those technologies. This would result in timidity in innovation, and would not serve the copyright law’s purpose."
That is exactly what Grokster would do. The case is a full-bore attack on the Sony Betamax decision, which allowed technologies (the VCR) capable of copyright-violating activities so long as it was also capable of "substantial noninfringing uses." That is, it couldn't be banned because people could use it to pirate copies of movies, since it could also be used by consumers for time-shifting.
If the Court finds against Grokster, they will have overturned Sony, and in the process handed to Hollwood a "strategic opportunity to exercise control over the future of content development and distribution," in the words of Creative Commons founder Larry Lessig.
Now where do Intel and Apple sit? Not in the catbird's seat. When it comes time to negotiate the next version of the Apple Music Store, will it be lost on either side that the iPod is by no means beyond the secondary liability claims that the Grokster ruling allows?
I started this piece with the notion of a "media technology" industry. What is that?
You don't have to look very hard to see a convergence between media and technology. Obviously people have been talking about convergence for a very long time. To Hollywood, convergence looks like digital TV and on-demand movies and interactive TV. But if you look at it from Silicon Valley, we think it looks a little different. We think media will become commodified and available to all comers for dirt cheap.
When you look at online music, for example, Apple is the driver. The record companies are lowly content providers. And it works that way because Apple owns all the technology that makes this work in a legit way: the iPod (consumer electronics), iTunes (software), Apple Music Store (e-commerce) and enough DRM to keep them happy (and marketing prowess and consumer satisfaction and brand loyalty). Content is not king: the technology platform is king.
The iPod is the technology platform, and with podcasting it is entering the realm of unintended uses, which is the mark of a great technology. Ditto for RSS, the other major piece of podcasting. Podcasting has ripped through the geek-out phase and innovative new companies are starting up to figure out the wildfire-new ways of deliving and distributing media. Their technologies will be used to allow podcasters to illegally sample music, splice in movie clips, etc. (how long before we have vidpods?)
To bring this back to Grokster, Apple might always find a way to work with Hollywood; but small companies that threaten the status quo in much deeper ways will simply be sued out of existence. If Grokster becomes law, you can kiss podcasting goodbye. In the case of ReplayTV, it's already happened. Lessig, from my interview with him:
"[ReplayTV] produced what looks like a modern version of the VCR and they spent two years in litigation with content owners who claimed that they were producing a technology that people used to create copyright infringement, and that they should be held responsible for it. Two years of litigation is enough to sap out all the resources of a startup company, and they were eventually forced into bankruptcy. I think the case stands for the obvious points that the Sony Betamax case was trying to make--if you can pull somebody into court under some vague standard of liability just because the tools are being used by people to create copyright infringement, that's a very good way to block new innovation that might change the way copyright material gets distributed."
Links:
