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March 3, 2005
The Incentive for Keeping P2P Illegal
Ernie Miller, examining the Jonathan Zittrain/John Palfrey/Terry Fisher brief in the Grokster case [PDF], observes that "the secondary liability standard that Hollywood promotes has perverse incentives" (emphasis, mine):
If, as they argue, technologies should be liable based on the prevalence of infringing activity using the technologies, the incentive is for Hollywood to passively encourage infringing content in order to gain control over the infringing technology.
Imagine the VCR. What if Hollywood had, as they originally did, continued to price pre-recorded videotapes at well over $100 a piece (instead of <$20 as they do now)? Well, there would be a lot more videotape piracy as people would be unable to easily afford to purchase them.
Now consider P2P. What if there were no iTunes? What if there were no Napster 2.0? Or what if there were, but they charged outrageous rates such as $50 per downloaded album (and you could only download albums)? Wouldn't there be even more copyright infringement on the Internet than there is currently? If Hollywood has its way in Grokster, wouldn't their incentives be to resist new technologies until they had a court determine the technology was primarily used for infringement and thus subject to their control?
Seems logical to me. The more people infringe, the louder that Holywood and the record companies can yell "thief," and the bigger the club that Congress and the courts will hand them to beat down any copying technology they wish.
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