Grokster (3): Who Won?

This is the core question for most people. The sarcastic (and always correct) answer is "the lawyers won." Of course, the real problem is that neither of the represented sides got what it asked for/wanted, and the other interested parties got only lip service. Grokster and Streamcast—I'll call them the "service providers" for simplicity from here on, as the question of providing software is largely a sideshow as the opinion was actually written—didn't get a continued liability shield. Instead, they get the dubious privilege of going back to court against a mass of evidence that the Supreme Court has already indicated convinces it of their ultimate liability. On the other hand, the RIAA, MPAA, etc.—I'll call them the "content owners" for simplicity, although that also raises a lot of other issues—didn't get much clarification or evisceration of Sony. What the content owners got instead was a way to evade Sony's reach against a distribution channel (as opposed to a technology), not a change in the rule.

Professor Solum contends that

The Grokster decision may have been a minor tactical victory for content providers, but it is a stupendous strategic loss.

I can't agree with this characterization, although it does correctly emphasize that we can't call the content owners "big victors." Professor Solum correctly notes that the genie is out of the bottle. What that really does, though, is make Grokster not a strategic loss, but irrelevant. If the lawsuit had no chance of putting the genie back in the bottle, it can't be a strategic loss. And, in any event, I think that the result in Grokster did have some long-term strategic advantages for the content providers (if not what they were seeking): It makes commercial exploitation of P2P an at-best dicey proposition. Eventually, the "system" is going to stabilize to the point that various aspects of public trust in noncommercial sources will keep it viable (or, as the case may be, prevent it from being viable). Then, too, there will remain the whole question of "locking doors": There's no such thing as an impervious lock. Locks work best against the casual thief and small-time criminal; perhaps they slow down the determined crook. They do their work by attacking convenience more than anything else. And, in turn, this shows why the facial win in the Grokster matter is not a "strategic loss" for the content owners: It is ultimately irrelevant to whether they continue to suffer damage from P2P networks.¹ It does, however, provide the cold comfort of knowing that it's going to be hard for someone else to profit from that damage.

In the long run, two major nonparties are the "strategic victors" in Grokster. On the one hand, the "garage-mechanic-for-the-love-of-it" technologist can breathe a huge sigh of relief. As long as it remains a hobby, that is. Given that so many advances in both film/music and information technology have come from "outside" of the Big Industry components, this is a good thing. On the other hand, the holes left in the decision for bands like Wilco to continue to choose to provide content for no charge are good both for those bands and for the public at large. Since those channels are now (in practice) essentially unassailable, as long as unprofitable, the "free downloads as marketing" theory has pretty substantial permission to move forward.²

The ultimate strategic losers are, as usual, the actual content creators. You can bet that the content owners are going to start contractually taking away the right/ability of content creators to engage in these self-promotion efforts. You'll see contracts that require that all "free distribution" be done by the content owners only; that content creators must provide only content that has never appeared in a "free distribution" channel, upon pain of lawsuit; and worse provisions. (I don't want to give anybody any ideas, although I'm sure their lawyers are evil enough to come up with them all by themselves.) But then, this was going to happen regardless of the result in Grokster; so, again, perhaps it's improper to characterize it as a "strategic loss."

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1. Conversely, though, had the other side won that would have constituted a strategic loss, because it would undermine the ability of the content owners to either maintain some kind of moral position against file sharing or to impose DRM systems that are not immediately cracked and circumvented. Cory Doctorow's well-considered (and actually understated) rant against DRM that he delivered to an audience of Microsoft employees is a rather gentle remind of this. And, for anyone (like me) who is old enough to having soldering scars from building one's first computer, there's only one necessary additional word (ok, word-construct): Copy2PC.

   Yes, that's right. I'm pro-copyright-creator… and anti-DRM. DRM is bad for content creators for one very simple reason: Every workable DRM system has enough inherent limitations that the potential audience for that creator's works is necessarily smaller than it might otherwise be. One of the stated (and real, if not only) aims of DeCSS was to enable Linux users to watch DVDs on their computers… which, because they used neither Windows nor MacOS, did not have available decoders compatible with CSS.

2. Assuming, of course, that "unassailable" means "would lose a lawsuit"—not "wouldn't be intimidated by a lawsuit," nor "wouldn't be bankrupted by a lawsuit," nor "wouldn't be deterred by the very idea of Hollywood lawyers knocking at one's door." <SARCASM> But then, industry lawyers never file frivolous suits, do they? </SARCASM>