Entertainment Industry Pretending to Have Won Grokster Case --Feedom to Tinker

Wednesday August 3, 2005 by Edward W. Felten

Most independent analysts agree that the entertainment industry didn’t get what it wanted from the Supreme Court’s Grokster ruling. Things look grim for the Grokster defendants themselves; but what the industry really wanted from the Court was a ruling that a communication technologies that are widely used to infringe should not be allowed to exist, regardless of the behavior and intentions of the technologies’ creators. The Court rejected this theory.

Last week the Senate Commerce Committee held a hearing (a video stream is available) on the Grokster aftermath. This was a chance for witnesses representing various interests to put their official spin on the Grokster ruling. All of the witnesses praised the ruling and asked Congress to wait and see what develops, rather than legislating right away. But different witnesses put different spins on the ruling.

The entertainment industry line was presented by Mitch Bainwol of the RIAA, Fritz Attaway of the MPAA, and Gregory Kerber of Wurld Media (a music distribution service). Their strategy was essentially to pretend that the Court did give the industry what it wanted, and that P2P technologies were now presumptively illegal unless they had cut licensing deals with the industry. They didn’t argue this directly, but the message was clear. For example, they tried to draw a line between “legitimate” P2P technologies and others, where legitimacy was apparently achieved by signing a licensing deal with major recording or movie companies.

For example, in response to concerns from Mark Heesen of the National Venture Capital Association about venture capitalists’ fears of financial ruin from investing in even well-intentioned communication technology companies, Mr. Kerber said this:

It’s very clear how you get investment. The rules are there. We’re a P2P — we’re a real peer-to-peer — it’s centrally controlled, we can control that … we can respect the copyright holder’s wants during — through a contractual process.

And the way that investors realize that is when we go out and get deals with the record labels, movie studios; and … the venture capitalists do their due diligence, they call and they find out that … the content owner of these assets [says] yes, we will allow this to be transferred and distributed and sold … within — on the network.

So … it’s very, very clear. If you have a contract with a major label, indy label, movie studio, publisher, what they have said is, we will allow the content to be sold in this manner across our network. So I’m a little confused by — there’s an absolute clear path for an investor to understand what’s right and wrong in the process.

It’s a simple message. Investing in technologies that have been blessed by the entertainment industry: right; investing in other technologies: wrong.

But it’s not what the Court said. The Court rejected the proposition that P2P or other communication technologies can exist only at the pleasure of the entertainment industry.

Despite this, we can expect to hear more of this rhetoric of “legitimacy”. And when P2P technologies continue to exist and be popular, we can expect calls for legislation to control the scourge of “illegitimacy”.

This entry was posted on Wednesday August 3, 2005 at 6:22 am and is filed under Technology and Freedom, Grokster Case, Peer-to-Peer. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

Whenever the entertainment industry uses the phrase 'very clear' it's not. Whenever they say
'pure and simple' it's not.

The only thing that's clear to me is that they are a bunch of lying thieves, pure and simple.

Making all P2P programs illegal, and then developing your own P2P to monopolize and control, will avoid anti-trust violations because there are no other P2P competetors except you.

Microsoft got hit with anti-trust violations because of other competetors. By using the law to wipe out competition, you'll win all the time. Looks like a loop hole to get around anti-trust violations.

Um... isn't wiping out all competition a direct violation of the Sherman Anti-Trust Act? If competition is wiped out, even by the law, then either the laws have to be changed to permit this competition, or those enforcing the law are guilty of violating the anti-trust act.

INeedAlover: Agreed.

"Um... isn't wiping out all competition a direct violation of the Sherman Anti-Trust Act? If competition is wiped out, even by the law, then either the laws have to be changed to permit this competition, or those enforcing the law are guilty of violating the anti-trust act."

I think re-writing the laws to serve your own agenda should be illegal in the highest order, but considering how much all parts of the entertainment industry invested for seats, that'll likely never happen.

I'm just hoping the next president we get happens to be a good one so we can throw out all this crap. I still can't belive we have another 3 years to go in dealing with this commie bs.