[ EEPI-Discuss ] Re: The Grokster Decision: Chewing Gum For the Hole in the Dam

[Dan Krimm <djkrimbo@earthlink.net>]

>Date: Mon, 27 Jun 2005 09:12:52 -0700
>From: Lauren Weinstein <lauren@vortex.com>


>   "We hold that one who distributes a device with the object of
>    promoting its use to infringe copyright, as shown by the clear
>    expression or other affirmative steps taken to foster infringement,
>    is liable for the resulting acts of infringement by third parties."
>
>Obviously there is lots of room for interpretation, so courts
>and lawyers will be busy for many years on these cases.

This also does not narrow the domain of possible infringement to P2P file
sharing systems per se.  Does Google infringe?  Does TCP/IP infringe?
Where exactly are the lines?  The possibilities for harassment suits are
many, and that produces a chilling effect on development.  This keeps
barriers to entry high (don't get in the business unless you have a
substantial legal budget).



>That's just the way it is, like it or not -- unless we're willing to
>completely turn off the Internet -- and the phone system!

Note that the other SCOTUS case of interest, Brand X, also came down on the
side of content control, against open access.  When the Internet ends up
looking like AOL's proprietary service domain or cable video programming
tiers, it'll be too late to say anything about it, because those statements
will possibly not get through the network at all.  (Then again, if the
telco's end up winning the video service war, without the local franchise
requirements of cable, many people may not be on the net at all because of
redlining.)

Who will be left on the web when you can't get to it except through a
content filter?

Those who wish to control society and its public discourse will no longer
do anything so crude as to censor speech outright -- they use ancillary
tactics to disguise the strategy.  They won't abjectly turn off the
Internet or the phone system, but they can very well legislate
characteristics that allow redesign of the protocol so that it is no longer
an open-end-to-end architecture.

Don't think that this is somehow out of the question.  That would be naive.
Powerful entities in this market would love to see this happen, and it is
entirely feasible because protocols are continuously updated, allowing
content constraints to creep into the design piecemeal.

Not a Tsunami, but the relentless drip-drip-drip of a myriad of small
undulations lapping gently at the edges.  I think Brand X may be the more
insidious decision of the day.

Dan
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