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January 25, 2005
Once More Into the Betamax Breach
Yesterday, the major motion picture studios and the recording industry filed a brief [PDF] in MGM v. Grokster arguing that the Betamax defense "should not apply when the primary or principal use of a product or service is infringing." They specifically reject the "mere capability" test that the majority of the Supreme Court endorsed in 1984.
Fred von Lohmann has now posted a response over at Deep Links. The gist? If we substitute a "primary use" test for mere capability, we swap an incentive to explore new business models with an incentive to "let slip the dogs of litigation as early as possible, before a new technology starts proving its noninfringing potential." While the Betamax test has allowed technological innovation to move forward, a "primary use" test would force it into retrograde.
Ed Felten also has a must-read post on two of yesterday's briefs -- the Solicitor General's brief [PDF] and a brief from a group of anti-porn and police organizations [PDF]. He argues that the briefs "are caught between nostalgia for a past that never existed, and false hope for future technologies that won't do the job." What they really want, writes Felten, "is [an Internet] that is easier to regulate, a net that is more like broadcast, where content is dispensed from central servers."
Their main criticism of Grokster is for its "engineered ignorance of use and content" (p. 9; note that the quoted phrase is a reasonable definition of the end-to-end principle, which underlies much of the Internet's design), for failing to register its users and monitor their activities (e.g., p. 13), for failing to limit itself to sharing only MP3 files as Napster did (really! p. 17), and for "engineer[ing] anonymous, decentralized, unsupervised, and unfiltered networks" (p. 18).
These arguments (as the lawyers say) prove too much, as they would apply equally to the Internet itself, which is ignorant of use and content, does not register most of its users or monitor their activities, does not limit the types of files that can be shared, and is generally anonymous, decentralized, unsupervised, and unfiltered.
Fascinating stuff -- and no doubt there will be much more to come. Once again, the spots to watch for briefs are here
[Note: I posted this in extreme haste, and have since edited for coherence/readability.]
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