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Daily Archive for Thursday, May 5th, 2005

Grokster Challenge Straight and True

Bethany Lobo offers challenge to my Grokster position. With her permission I post her challenge here and here will meet it or be vanquished.

In 2005, the international battle being waged between the recording industry and millions of peer-to-peer (“p2p”) file-sharers rages onwards. Increasingly desperate to regain customers who have halted their music purchases and reestablish the social illegitimacy of downloading music without compensation, the industry urges that legal action to halt online file-sharing is needed to ensure a market for socially beneficial musical works.
The situation in the United States reached a boiling point on March 29, 2005 in Washington, D.C., when the entertainment industry and two p2p networks appeared before the Supreme Court to plead their case. The former asked the Court to hold liable the p2p network providers that facilitated the widespread illegal dissemination of their copyrighted works. The p2p networks no less vigorously contended that to find for the industry would undermine a legal standard in reliance on which numerous widely-used technologies had developed, and would deprive society of the potential legal benefits of p2p networks before they could become widespread. As we wait for the authoritative word of the nine justices, we speculate how the battle should be resolved.
All involved agree that the continued creation of the musical works involved is desirable. It is certain that the music industry has sustained sales losses attributable in indeterminate part to online file-sharing: year-end physical record shipments for 2004 decreased twenty-one percent relative to 1999. On the other hand, society has benefited from creators’ ability to innovate both in cyberspace and real space; the ability to generate technologies for lawful uses should not be unduly abridged. We must seek an equitable solution that will balance these competing interests.
Lawrence Lessig posits a four-part modality which interacts to support or weaken each law or regulation: law, market, social norms, and architecture. The social norms pertaining to obtaining copyrighted music for free without permission radically altered after the debut of p2p networks. Beginning with college students, the idea that there was no worrisome harm in these Internet-facilitated copyright infringements spread quickly to the general population, which adopted the innocuous term “file-sharing” to describe the activity. This norms-based shift is in significant part responsible for the overwhelming popularity of p2p networks.
How should the law, market, and system architecture pertaining at this intersection of the Internet and copyright law adapt to compensate?

I argue that the law does not currently provide the music industry a viable legal remedy for the infringing file-sharing in which millions participate, but that an adaptation of the law coupled with an industry shift in the market offerings will remedy this. Because this change in law is best made by Congress, and the recording industry controls its market offerings, this paper advocates that the Grokster Supreme Court should affirm the Ninth Circuit’s interpretation of Sony.

Hi Bethany, Your introduction is solid. Your selectors are locked. We are engaged. May I have your permission to post your introduction on my blog.