Picker: File-Sharing v. File-Distribution

I think that we are ready to head to more of a workshop-like mode, now that the initial 100-yard dash of yesterday is over.

Tim, could you clarify your post on Grokster’s future?

I think we need to distinguish p2p file-sharing from file distribution. So iTunes and the new Napster are traditional vertical distribution models, just done online. (I haven’t used either so make sure to tell me Tim (or others) what I don’t know about them.) iTunes is a sale model, the new Napster a rental model, but both involve an intermediary putting songs into my hands for a fee. To the extent the iTunes and the new Napster deal with the record labels, they are the online equivalent of Tower Records. I don’t think that we need yesterday’s ruling to validate that model.

I do think in that framework that we need to distinguish iTunes from the iPod, and maybe Tim you want to say that yesterday’s ruling helps to protect the iPod? I don’t know what I think about that yet, but see Doug’s post from yesterday where he converts Rip. Mix. Burn into a lawsuit.

As to p2p file sharing, a business model for p2p file sharing might require copyrighted works, and yesterday’s opinion makes that much harder. But I don’t think that it should create substantial additional problems for the true believers in the open community and for academics. While I think that there may be substantial overlap ideologically in the open community between openness and anti-copyright, a version of it could be purely content-neutral. No business model at all, no advertising at all, and the hard reading of footnote 12 suggests that the open community would be protected from the new inducement branch of copyright law. That would still leave Sony, and God only know what we will make of the 3-3-3—I think of it as 3-cubed now—opinions that we saw yesterday (see Bill Patry’s deep unhappiness with this part of the ruling).

Lior, am I right in understanding your post yesterday on BitTorrent as expressing the view that it was protected as a pure protocol?

Comments

[Lior Strahilevitz]

Randy - I haven't studied the BitTorrent protocol sufficiently to express an opinion as to whether it wins under Grokster. So I styled my post as a lawyerly "assume arguendo . . . " Mark Schultz has a new post up analyzing this issue in detail here: http://blog.ericgoldman.org/

[Ernest Miller]

Mark Schultz's analysis is good as far as it goes, but it doesn't take into account the recent addition of search to BitTorrent (http://search.bittorrent.com/), which might be evidence of intent. If any evidence of intent is found, the recent addition of trackerless BitTorrent, which makes the system even more decentralized, might be evidence of bad design as well.