A Copyfighter’s Musings

Don’t miss Doug Lichtman’s blogging over at Crescat Senteria.  He covers a range of issues relating to self-help, including two on copyright.  The first post covers DRM, including its potential benefits and ways of reducing its costs.  On these points, see a previous post of mine here. I think to some extent, we’re in agreement.

The latter focuses primarily on secondary liability.  I’ve been over this ground in particular before – in fact, we all have recently in the fight over INDUCE.  In light of that, his cogent arguments are worth mulling over.  They’re all fair points, but I still think he understates the potential harm of his negligence balancing method and the uncertainty it would create. Costly litigation, without any ability to win with a motion to dismiss or summary judgment, poses a significant threat to all innovators.  In targeting clear “bad actors,” I think this approach would sweep much further.

Furthermore, his argument that legitimate uses of P2P lack “plausible charm” is underwhelming.  First off, if putting content in central depositories like mp3.com was clearly superior or at least equal to using P2P, why wouldn’t everyone just do that?  Why would anyone be signing up with Weedshare or Altnet? Why would the Internet Archive and Linspire use P2P for distribution? 

Yes, legitimate users of P2P have plausible alternatives but they are not necessarily equivalent alternatives.  Important cost-savings come from distributing via P2P, as one need not sign up with any intermediary for hosting.  Moreover, cost-savings come from off-loading distribution and hosting costs onto other P2P users; consider, for instance, how BitTorrent and eDonkey make pieces of a file available for sharing as it is being downloaded and simultaneous downloading from multiple sources.  Finally, a centralized system may hamper access to content during times of high server traffic or accidental system failures. Indeed, when the mp3.com ship sunk, all their artists went down with it. With a decentralized system, there is no such chokepoint.

Lichtman’s reply, I would imagine, would be that this may all be true and should simply be factored into our cost-benefit calculus.  This, again, leaves me feeling uneasy.  Do we really want courts going through intensive fact-finding to determine whether KaZaA’s legitimate uses are irrelevant because an intermediated environment like Mp3.com is sufficient?  Can we so easily sweep away the dangers of potential future uses?  In just the last year, systems like Weedshare and broadcatching via BitTorrent  have progressed.  Had we made a calculus regarding P2P’s costs and benefits just a short while ago, perhaps people would be more likely assess P2P’s “plausible charm” just like Lichtman.

Filed by Derek Slater at 3:29 pm under General news
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