Wednesday, June 29, 2005

The Court Has Ruled So Enter The Geeks

It's only fitting that I'll clip Jon Pareles entire article on the SC ruling - but the whole thing can be read here.

The Court Has Ruled So Enter the Geeks

Published: June 29, 2005

The Supreme Court's unanimous decision Tuesday in the Grokster case means trouble and potentially ruinous judgments against commercial file-sharing services, but it has also established a new standard for software innovation: don't ask, don't sell.

That is, don't ask for or gather information on what users are doing with the software you write, and don't sell ads that profit from access to copyrighted material.

The court found that the file-sharing companies Grokster and Streamcast could be sued for copyright infringement because they offered marketing and technical advice that clearly induced their customers to share files illegally, so the companies could attract larger numbers of users and thus more advertising.

But the court did not give the movie and recording businesses much ammunition to attack the Robin Hoods of the Internet: those software geeks and culture fans who really just want to share. They are online right now building Web sites that don't make a dime and spending hours writing and editing "mp3 blogs" - Web page collections of downloadable songs. They hook people up, basically because they can and because people want access to art.

File sharing software designers learned "don't ask" from the federal court judgment that shut down Napster in 2001. Napster's legal problem was that it could ask, and every request went through a central server, so Napster presumably knew what users were trading, thus abetting copyright infringement.

The geek response was decentralized programs like the software behind Grokster and Kazaa. But those are ugly programs because they don't just connect people with files to share; they also install spyware and adware to sell advertising and profit off the traffic in (primarily) copyrighted files.

Enter the geeks again, who came up with ways to stop ads from displaying or engineered stripped-down ad-free versions of the software like Kazaa Lite. In a charming move, Kazaa tried to stop distribution of Kazaa Lite, claiming it was a copyright violation.

Then the geeks came up with programs that established independent, ad-free networks or, like Bittorrent, facilitated multiple individual connections. The court's decision may torpedo the parasitical, ad-pumping services like Grokster, Kazaa and Morpheus, but no one's going to miss them much. There are plenty of geek alternatives that were devised not as business startups, but for the programmers' satisfaction and the users' sense of connection.

It's a completely alien mentality for profit-focused companies that still dream of being paid every time someone hears a song. Reality has never exactly worked that way, from radio to the Internet. In the United States, songwriters are paid for radio air play, but performers and recording companies are not, on the theory that having a song broadcast sells recordings and concert tickets.

That uncompensated use built a huge recording business. And while most radio is supported by advertising - like Grokster - it feels free to listeners.

So does the Internet, where people share everything from chocolate-chip cookie recipes to the details of last night's date. Motives for sharing music and movies are more complex than a grab for free goods. There's no doubt that getting entertainment free is a huge lure, but so is the access the Internet offers potentially to everything ever recorded or filmed.

Someone has it, and with the right hookup, so can you.

A few thousand CD's and DVD's at the mall no longer seem comprehensive. Even huge catalogs of paid downloadable music like the iTunes Music Store have notable gaps - the Beatles, for instance - and arrive with digital rights management encumbrances that can be confusing or worse.

Marybeth Peters, the Register of Copyrights, recently suggested a complete revamp of the overlapping licenses that have made it so complicated to get rights to put music online legitimately. That could take some time. In the meantime, a little digging can find even the most obscure material free and easy to use.

File-sharing software allows people to download without sharing - the logical thing to do if all that matters is getting material free. Yet millions of people open up shared folders anyway (which also opens the sharers up to lawsuits from the Recording Industry Association of America).

Why? To flaunt a collection. To spread the word on music they care about. To give back something for what they get. To feel cool. And while there is no doubt that some people are downloading copies of the latest Mariah Carey album, there are also people who grabbed a track of something they'd never hear on the radio, thus turning them into fans.

Copyright holders seem determined to shut down the buzz that builds stars. They want file-sharing technology to go away, refusing to recognize that the Internet itself could be defined as a file-sharing network. The Recording Industry of America has helped raid stores selling the mix tapes that build reputations in hip-hop, made from material supplied by the acts themselves. It sends cease-and-desist letters to fan blogs posting too many songs or lyrics and proselytizing for the music they love. Yet meanwhile, its member companies pay hundreds of thousands of dollars to promote a song into a radio hit or to make a video clip destined for MTV, where people can listen and watch free.

Six years after Napster arrived, it should be clear that geeks and fans are simply going to bypass a legal framework that was built for sales of sheet music and discs. As they did with radio and television, copyright holders should make those volunteers their allies in marketing because, try as they may, they're never going to find the Off switch.


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