Why the RIAA Wins in the End
Last Friday, I commented on the music industry's legal
strategy & arguments in attacking a variety on
"From a legal perspective, the [industry's] arguments
appeared even more tenuous, unless you decide to lump them
[tech firms] with cigarette companies & gun manufacturers.
Otherwise, it's akin to suing Ford for providing the getaway
car or the Post Office for delivering obscene material. Or
suing CD-R manufacturers for assisting crime syndicates in
flooding Hong Kong to NYC with counterfeit CDs."
My legal analysis appears to have been pretty much on target
according to U.S. District Court Judge Stephen Wilson who
rejected the entertainment industry's request to shut down
p2p file sharing systems. "Grokster and Streamcast are not
significantly different from companies that sell home video
recorders or copy machines, both of which can be and are
used to infringe copyrights."
But in a chapter co-authored for "Cyber Policy and Economics
in an Internet Age," I go beyond the 'significant
non-infringing uses' argument by raising the competitive
implications of attacking technology over pirates. "In the
Napster conflict, the courts responsibility was to address
the copyright issue. In practice, though, that decision,
intentionally or not, ended up addressing much more as it
simultaneously was setting the criteria that competitors
would have to abide by when developing new and innovative
distribution channels that could challenge the music
industry's own vertical channels."*
The argument was addressed towards the end of Napster's
rebuttal to the RIAA preliminary injunction in 2001 that I
had severely criticized at the time (see "Napster's Defense: Why Boies Is Wrong!"):
"Plaintiffs' legal maneuvering against Napster is less for
enforcing intellectual property rights than to control (1)
the flow of competing unsigned artists' music into the
electronic marketplace, and (2) the means of and business
model for distributing music over the Internet."
Obviously, the Napsters & Groksters of the world have done
just that, notwithstanding all the lawsuits - legal music
services have clearly evolved with one goal: to counter
competitive threat from file sharing systems. And while
Judge Wilson's decision represents an important blow to the
industry, it does bolster its efforts to prosecute egregious
file sharers, meaning more RIAA subpoenas arriving at your
"We are pleased with the Court's affirmation that individual
users are accountable for illegally uploading and
downloading copyrighted works off of publicly accessible
peer-to-peer networks. This is precisely the issue we have
been seeking to focus the public's attention on, and
yesterday's decision in the Verizon matter makes clear that
individual infringers cannot expect to remain anonymous when
they engage in this illegal activity."
While I do share some privacy concerns expressed by Verizon
and several organizations, at least we're finally targeting
the real culprits.
* "P2P, Digital Commodities, and the Governance of
Commerce," Cyber Policy and Economics in an Internet Age,
ed. W. Lehr & L. Pupillo, Kluwer Academic Publishers, 2002.
Related MusicDish e-Journal Articles:
» Napster's Defense: Why Boies Is Wrong!
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