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Why the RIAA Wins in the End
By Eric de Fontenay (Founder & Publisher)
(more articles from this author)
2003-05-01
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Last Friday, I commented on the music industry's legal strategy & arguments in attacking a variety on technology-based companies:

"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 local ISP.

"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! (2000-07-12)

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» UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA GRANTS GROKSTER'S REQUEST FOR SUMMARY JUDGMENT AGAINST MOTION PICTURE AND RECORDING INDUSTRIES
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