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« Microsoft, Virtualization, and... DRM? | Main | The Cartel's Reach is Long »

June 29, 2007

The Question is 'Why?'

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Posted by Alan Wexelblat

Classically, the definition of insanity is doing the exact same thing over and over, expecting different results. By this definition the Cartel's jihad against sharing is insane. They've sued thousands of consumers into a vile kind of mutual embarrassment, and a couple dozen companies into bankruptcy. Yet sharing continues unabated. Some would say it's on the rise.

So if we postulate that the Cartel are neither stupid nor crazy, the question remains: why are they pursuing a strategy that is not only failed but clearly counter-productive in simple cash-value terms. (Of course one could ask the same question about the US's War on Drugs or various other governmental policies, but this is Copyfight, not Big Politics, so we won't ask those questions.)

For an attempt at some answers we now have a nice think piece by Greg Sandoval on He notes the usual facts, plus this week's addition to the "Copyright Graveyard" - TorrentSpy and IsoHunt, which agreed to block links to copyrighted material as part of an apparent attempt to stay the hounds at the legal door. Sandoval then turns to the question of why the Cartel continues to pursue an adversarial legal strategy.

One possibility, which the Cartel would like us to believe, is that they have a secret and very coherent plan to sue everyone into obedience. See above where we ruled out the possibility that they are in fact this stupid. Moving on.

Another option is that it's simply a campaign of fear. If people can't be sued into behaving, perhaps they can be scared into it. That might work in the US, but as I noted earlier this month, people outside the US aren't really scared. In fact, they're pretty much mocking the Cartel.

A third possibility is that this is really a battle for control. Lawsuits are more or less rear-guard and distracting acts. The true agenda is for the Cartel to get the final say in what behaviors people can and cannot have. Ira Rothken, the lawyer representing TorrentSpy, points out that the Cartel have gone from suing hosts to suing software makers to suing network and link providers. If the original commandment was "Thou shalt not share" then the current incarnation is "Thou shalt not point out that someone else is sharing." That's a pretty scary reach and Rothken might be right. Or it may be that the Cartel are just evolving in their understanding of how sharing happens.

Finally, and most frighteningly, it's possible that the Cartel are gambling on a very large jackpot. Statistically speaking, if you bring enough cases you're going to get some judges that favor you. And one day, one of them is going to issue a far-reaching order like the one Chooljian put out in the TorrentSpy case. And if something like that happens, you can then run with it all the way to SCOTUS if need be. If something like that becomes the law of the land then the Cartel will have won the jackpot and all the money it has spent in lawyer's fees since Napster will be thought of as a prudent investment.

There's a thought to start your weekend.

Comments (4) + TrackBacks (0) | Category: Big Thoughts


1. Crosbie Fitch on June 30, 2007 4:44 AM writes...

Consider instead that they are canny.

Let us assume that like most cognoscenti they know quite well that the age of uncontrolled instantaneous diffusion of digital works is upon us.

They can either:
a) close down their copy manufacturing and distribution facilities (which they're probably doing anyway) and quietly fade into the sunset (or refocus in other areas).
b) scream blue murder, and go down fighting and prosecuting for all they're worth.

There ain't much of a dollar value on 'a', but there's quite a bit on 'b'.

The thing is, they may well expect compensation at some distant point if they pursue 'b'. Indeed, the more vigorously they pursue 'b', the sooner 'the people' will wake up and say "Enough! Take this money and make a new life for yourself. Copyright is henceforth abolished".

The RIAA is King Canute. It has been challenged to prosecute an unstoppable tide of citizen copyright infringers. It knew perfectly well this was impossible, that it did not have that kind of power, but nevertheless, it seems the people will not believe Canute cannot command the sea until he demonstrates that despite all efforts the sea cannot be stopped.

If Canute abdicates in contempt, well he's lost his kingdom. However, if he tries and fails, at least he remains king, even if his people must rescue their now not so potent potentate.

This is going to be expensive.

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2. drwex on July 2, 2007 10:54 AM writes...

I disagree (and have since Napster I) that a and b are the only options. They didn't shut down when the VCR made home copying easier. They evolved business models (eventually, kicking and screaming) that made the VCR a major revenue source. I don't see any logical reason why they couldn't do the same things with digital distribution.

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3. Crosbie Fitch on July 2, 2007 12:19 PM writes...

Well, if they want to go for option 'c' - implement the Digital Art Auction, then I'll be happy to help. I reckon it could realise a heck of a lot of their back catalogue.

But let's put it this way, I'm not holding my breath in wait for a knock at my door.

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4. Nathanael Nerode on October 10, 2007 5:08 AM writes...

Even if they won in SCOTUS they'd still lose; people know that the Cartel's wannabe laws are essentially violations of fundamental human rights, and like all such laws they will be violated routinely, forever. They're destroying their own reputation one step at a time. And without their reputation -- their legitimacy -- they are nothing.

Unfortunately they may help take down the reputation and legitimacy of the United States Government on the way. This is already happening for many, many other reasons. Once it loses legitimacy, it could still hold power, but we'll be no better than all those third-world dictatorships where nobody obeys the law unless the police are watching, and everyone fears the police, and the police *never* obey the law....

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