Banning Internet May Decrease Infringement

Joshua Meier is right in this regard: if “P2P networks are made illegal” – that is, if we could actually ban all technologies capable of allowing people to transmit files directly to each other over the Internet – there probably would be less infringement.  Glad we settled that.  But let’s explore what actually banning those technologies really entails.

Making “P2P networks … illegal” involves more than flipping a switch and banning P2P networks narrowly.  As Ed Felten explains, crafting a definition that includes P2P and leaves out most other Internet technologies is basically impossible.

A result against Grokster would thus affect myriad other technologies. But would it affect P2P?  Not really. As the Darknet authors conclude, “the darknet-genie will not be put back in the bottle.”  The technology is already out there. It can be easily created and distributed by a hobbyist programmer. It’s already distributed by offshore companies and sites.  Shutting down these commercial entities will not even shut down their existing networks.  Shut down the big networks and you end up with highly interconnected and efficient “small worlds” networks.  In this way, Grokster isn’t really about P2P – it’s just about all the other technologies that will be impacted.

Which is not to say that there would be no way to eliminate P2P.  Let’s not rehash the old can we regulate the Internet argument – sure we can. We could reshape the network so that ISPs or other traffic routers could have certain controls that would discriminate between types of traffic.  As FvL discusses here (search for “I’d rather filter” and follow comments), we could monitor all traffic and restrict anonymous communications so that we can track the source of distributed content.

[slightly updated 3 PM]

Next Questions about Grokster

(Some off the top of my head thoughts that are not really that novel but that I want to jot down anyway:)

First biggie: how is Sony treated as precedent?

A wholesale reverseal of Sony seems unlikely.  Instead, one could casually make some distinctions, as the district court opinion in Aimster did.  None of those distinctions seem particularly reasonable to me, but that doesn’t me the Court won’t use them.  If the Court does go this route, it will be important which distinction they choose to make.

Second, how does this affect those arguing on behalf of Grokster and Streamcast?  Obviously, they will need to highlight how the Court should be bound by what they said in Sony and how, as the 9th Circuit demonstrated, those rules clearly apply here.  At the same time, unlike in the courts below, it seems hard to believe that that alone will carry the day.  The normative arguments will play a much bigger role – what is the judicial system’s role here?  why is Sony as interpreted below the best rule?  what are the costs of changing it?

Agitated over Grokster Cert

Jonathan Zittrain spread the news as part of his keynote last night.  I’m glad my blurted “I don’t f-ing believe this” didn’t carry too far through the conference room. 

Tim Wu laid out the case for why the SC would grant cert. I only bought reasons 5-7, all of which explain but do not provide valid reason for the Court’s decision.  See the Grokster opposition to cert brief and FvL’s earlier post, but let me summarize some reasons why the cert grant is unwarranted.

The Court has gotten itself involved in Sony, Teleprompter, Fortnightly, etc., but that doesn’t provide any basis for getting involved here.  Those cases all involved fairly novel issues. Sony already set the standard in this area. You can draw distinctions between P2P and everything that’s come before it.  However, the underlying legal issues were already dealt with in Sony.  Indeed, that was the whole rationale behind the Grokster decision.

Moreover, the lower courts are still handling these issues just fine. There’s no circuit split that the Court needs to resolve.  The conflict over the consequences of passing that test is the substantial divergence between Grokster and Aimster, but Posner’s Aimster opinion is almost entirely dicta; the holding was entirely based on Aimster’s inability to show substantial non-infringing uses.  To the extent there is a conflict on that issue, it is minimal, and it’s not even clear that Posner’s standard in that narrow regard would not protect Grokster and Morpheus. 

Finally, and perhaps most importantly, Congress is already considering this very topic.  Congress is entirely capable of fine-tuning the liability standards should it choose to do so.  There is no urgent reason that the Court must solve this issue instead.