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Supremes leery of P2P ban

Scalia, Breyer weigh chilling effects

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Hollywood vs P2P Two Supreme Court justices expressed concern today that outlawing P2P software would have deleterious consequences for the Republic.

The Court is weighing an appeal by Hollywood to hold the makers of P2P software responsible for the widespread copyright infringement that takes place on the P2P networks. The Court needs to decide if the software also has "substantial" non-infringing uses, which of course it does. An appeals court agreed that it did last year.

Justice Scalia worried that inventors and entrepreneurs would be discouraged by the threat of litigation. Such chilling effects are hard to quantify, but it's remarkable that no company has marketed an "AirPod" in the United States, when the appeal of such a device is so compelling and the technology so cheap and trivial to implement.

Justice Breyer noted that P2P potentially offered "some really excellent uses" that are legal.

On the other hand, most P2P sharing is of copyright infringing material, and artists don't get paid. Justice Kennedy fretted that building a business on this was morally questionable, which is also true.

From a historical perspective there is nothing new about P2P technology. In ten years time, when most music sharing will take place on ad hoc personal area networks (on the bus or in the street), the Supreme Court may well be hearing the same arguments from Hollywood only about another kind of technology.

"We are doing all the things we should be doing to move into this digital age. That is true no matter what the outcome'' claimed RIAA Chairman Mitch Bainwol.

Which is almost exactly the opposite of the truth.

The Supreme Court should send the two sides packing to draw up a settlement which compensates the artists: just as the technology companies and artists' representatives did after the invention of player pianos, loudspeakers, and the radio set.

The only thing that the RIAA needs to do, is pursue a traditional compulsory license settlement. Without it, its legitimacy is highly questionable.

The case continues, and we'll have full analysis of the exchanges later today. ®

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