Corante

AUTHORS

Donna Wentworth
( Archive | Home | Technorati Profile)

Ernest Miller
( Archive | Home )

Elizabeth Rader
( Archive | Home )

Jason Schultz
( Archive | Home )

Wendy Seltzer
( Archive | Home | Technorati Profile )

Aaron Swartz
( Archive | Home )

Alan Wexelblat
( Archive | Home )

About this weblog
Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.

What Does "Copyfight" Mean?

Copyfight, the Solo Years: April 2002-March 2004

COPYFIGHTERS
a Typical Joe
Academic Copyright
Jack Balkin
John Perry Barlow
Benlog
beSpacific
bIPlog
Blogaritaville
Blogbook IP
BoingBoing
David Bollier
James Boyle
Robert Boynton
Brad Ideas
Ren Bucholz
Cabalamat: Digital Rights
Cinema Minima
CoCo
Commons-blog
Consensus @ Lawyerpoint
Copyfighter's Musings
Copyfutures
Copyright Readings
Copyrighteous
CopyrightWatch Canada
Susan Crawford
Walt Crawford
Creative Commons
Cruelty to Analog
Culture Cat
Deep Links
Derivative Work
Detritus
Julian Dibbell
DigitalConsumer
Digital Copyright Canada
Displacement of Concepts
Downhill Battle
DTM:<|
Electrolite
Exploded Library
Bret Fausett
Edward Felten - Freedom to Tinker
Edward Felten - Dashlog
Frank Field
Seth Finkelstein
Brian Flemming
Frankston, Reed
Free Culture
Free Range Librarian
Michael Froomkin
Michael Geist
Michael Geist's BNA News
Dan Gillmor
Mike Godwin
Joe Gratz
GrepLaw
James Grimmelmann
GrokLaw
Groklaw News
Matt Haughey
Erik J. Heels
ICANNWatch.org
Illegal-art.org
Induce Act blog
Inter Alia
IP & Social Justice
IPac blog
IPTAblog
Joi Ito
Jon Johansen
JD Lasica
LawMeme.org
Legal Theory Blog
Lenz Blog
Larry Lessig
Jessica Litman
James Love
Alex Macgillivray
Madisonian Theory
Maison Bisson
Kevin Marks
Tim Marman
Matt Rolls a Hoover
miniLinks
Mary Minow
Declan McCullagh
Eben Moglen
Dan Moniz
Napsterization
Nerdlaw
NQB
Danny O'Brien
Open Access
Open Codex
John Palfrey
Chris Palmer
Promote the Progress
PK News
PVR Blog
Eric Raymond
Joseph Reagle
Recording Industry vs. the People
Lisa Rein
Thomas Roessler
Seth Schoen
Doc Searls
Seb's Open Research
Shifted Librarian
Doug Simpson
Slapnose
Slashdot.org
Stay Free! Daily
Sarah Stirland
Swarthmore Coalition
Tech Law Advisor
Technology Liberation Front
Teleread
Siva Vaidhyanathan
Vertical Hold
Kim Weatherall
Weblogg-ed
David Weinberger
Matthew Yglesias

LINKABLE + THINKABLE
AKMA
Timothy Armstrong
Bag and Baggage
Charles Bailey
Beltway Blogroll
Between Lawyers
Blawg Channel
bk
Chief Blogging Officer
Drew Clark
Chris Cohen
Crawlspace
Crooked Timber
Daily Whirl
Dead Parrots Society
Delaware Law Office
J. Bradford DeLong
Betsy Devine
Dispositive
Ben Edelman
EEJD
Ernie the Attorney
FedLawyerGuy
Foreword
How Appealing
Industry Standard
IP Democracy
IPnewsblog
IP Watch
Dennis Kennedy
Rick Klau
Wendy Koslow
Kuro5hin.org
Elizabeth L. Lawley
Jerry Lawson
Legal Reader
Likelihood of Confusion
Chris Locke
Derek Lowe
Misbehaving
MIT Tech Review
NewsGrist
OtherMag
Paper Chase
Frank Paynter
PHOSITA
Scott Rosenberg
Scrivener's Error
Jeneane Sessum
Silent Lucidity
Smart Mobs
Trademark Blog
Eugene Volokh
Kevin Werbach

ORGANIZATIONS
ARL
Berkman @ Harvard
CDT
Chilling Effects
CIS @ Stanford
CPSR
Copyright Reform
Creative Commons
DigitalConsumer.org
DFC
EFF
EPIC
FIPR
FCC
FEPP
FSF
Global Internet Proj.
ICANN
IETF
ILPF
Info Commons
IP Justice
ISP @ Yale
NY for Fair Use
Open Content
PFF
Public Knowledge
Shidler Center @ UW
Tech Center @ GMU
U. Maine Tech Law Center
US Copyright Office
US Dept. of Justice
US Patent Office
W3C


In the Pipeline: Don't miss Derek Lowe's excellent commentary on drug discovery and the pharma industry in general at In the Pipeline

Copyfight

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

June 29, 2007

The Question is 'Why?'

Email This Entry

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 news.com. 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


COMMENTS

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.

Permalink to Comment

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.

Permalink to Comment

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.

Permalink to Comment

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....

Permalink to Comment

POST A COMMENT




Remember Me?



EMAIL THIS ENTRY TO A FRIEND

Email this entry to:

Your email address:

Message (optional):




RELATED ENTRIES
Music Business for 21st Century Independent Artists
Net Neutrality? Still Could Be Kept
Hey, Look, E-Books Still Suck
Makers, Fan Art, Making it Pay
IP Analogy to Physical Property (in Architecture)
That Sound You Hear is the Anti-Neutrality Dam Breaking
Having (Mostly) Failed with Authors, Amazon Makes a Pitch for the Readers
And No Kill Switches, Either