From: luis terrassa <luiste@prw.net>
  To  : <CPC@emoglen.law.columbia.edu>
  Date: Sun, 6 Mar 2005 23:28:08 -0500

Grokster case and internet architecture

Some comments on the Grokster brief and the copyright issue:

The Court is most likely to approach its decision, whatever it may be, 
from the point of view of its previous rulings on the issue, starting 
with the Sony case on contributory copyright infringement. One of the 
strongest arguments he Court could use to rule against MGM is that the 
potential for non-infringing use of peer-to-peer technology are not 
limited to the those of a particular device, but should be examined in 
the context of Web architecture in general, and that it is the 
potential uses of the concept, rather than those of the device, that 
the Court should look to in determining whether this is or not an 
infringing technology. Inevitably, the question of non-infringing uses 
has become the established measure for the Court to determine whether a 
technological device is to be banned as an instrument of crime, or 
given a chance to live as a more or less harmless creature. While the 
Court has previously looked more at current non-infringing uses, 
potential uses inevitably loom large when the subject is a relatively 
new technology.  It would not be a substantial departure from precedent 
for the Court to find that peer to peer architecture cannot be 
sentenced to death by judicial decision if it is but one of the 
manifestations  of a new and crucial technological development in the 
future development of electronic communication. Once the Court can be 
convinced that the defendant here is not simply a file sharing device 
used overwhelmingly for copyrighted file-sharing, but rather a small 
part of what constitutes a new paradigm in internet architecture,  it 
cannot reasonably find that the non-infringing use of peer to peer 
technology is sufficiently insubstantial to support a decision in favor 
of the music industry. At least, it could not do so  without overruling 
itself to such a degree that it would have a very hard time explaining 
the basis for its decision.

On the other hand, the court that decided Eldridge v. Ashcroft will not 
lightly let go of its idea of copyright protection unless it can be 
convinced that deciding this case does not mean the death of 
Constitutional Copyright by judicial decree. The music industry has so 
far succeeded in seeding an uncomfortable doubt in otherwise skeptical 
judicial minds that peer-to-peer signifies the unravelling of all 
copyright we have ever known or will ever have the pleasure to become 
acquainted with. If this Court did not believe it had somehow been 
called upon to fight the last battle in defense of Copyright, it would 
not have given The Mouse its statutory immortality. Of course, if 
anyone had thought out a solution that could keep Copyright cozy 
without destroying our civil liberties, this case would not have made 
it past the district court. At the same time, it is still to early in 
the 'Digital Age' to hope that courts will easily agree to kill the 
very creature they have just immortalized. Can arguments be made to 
convince the Court that enough will remain of copyright as they know it 
in a world of peer-to-peer Web architecture? Or can arguments be made 
to convince the Court that it is possible for the existing copyright 
regime to mold itself in such a way as to continue to provide the 
necessary constitutionally mandated incentives to invest in the 
development of 'creativity' without crushing this wave of technological 
development? More importantly, can this Court be persuaded to accept 
that the burden must be on the music industry to explain why it is that 
its business model is the only way to defend the creative impulse in 
our society, when the realities of technological progress point the 
other way? Somehow, despite the fact that the issue has gone all the 
way up to the Supreme Court, the defenders of digital freedom and 
innovation have fallen short convincing the various courts about whose 
side the burden of proof should be on. The burden of coming up with the 
alternative is still on those who challenge the music industry's 
business model, and not on those who pride themselves in their assumed 
role as guardians of the creative impulse in our society.

Of course, we know that any creativity that exists among us does not 
owe its life to the copyright regime in its present form. If creativity 
needed statutes to defend it, there would be few humans articulate 
enough to enact them, and fewer still to understand them. But this is 
not a case about the merits of the copyright statute. What is at stake 
in Grokster is the power of an industry to impose its language upon the 
rest of us, the ability of discourse to take advantage of our fear of 
innovation and the unknown, and about our ability to counter those 
fears with sensible reason, creative freedom, and a dream of unimagined 
possibilities.





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