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After Grokster: why (almost) everything we're told about P2P is wrong

Two lobbies, no brain

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Analysis Grokster! Is it the end of the world as we know it? No, it isn't. But before we examine how the two lobbies, the technology lobby and the recording industry lobby, have let us down so badly, let's pause for a moment to consider how the press has let us down this week, too.

The first rule of punditry is that you must never, ever let the facts get in the way of an argument. Especially if it's an argument you've been rehearsing for days, weeks or even years.

Yesterday the Supreme Court made a narrow judgement on copyright liability. As Thomas C Greene reported, the Court affirmed the obvious, and bounced the issue back down to the lower courts, where it will be fought all over again. By doing so, the Judges were stating that the two sides are quite capable of sorting this matter out between them, that the established precedents need not be revisited (for example, Sony v Universal) and that the wisdom of their judgement will be called upon another day. Now get snappy. But the professional pundits and their pyjama-clad reflections in the "blogosphere" had been anxiously waiting for the Supremes' verdict for a week, with their explosive editorials primed and ready. And off they went, like lab monkeys on meths sniffing fresh air for the first time.

The result is today's deluge of incorrect, poorly informed and self-serving babble.

We all know that the two lobbies have been shouting past each other for years. Perhaps this is only to be expected in the internet era, where one-way discussion and empty posturing define the medium. But now the stupidity has seeped into the popular discourse - and for this, the professionals have fewer excuses than the amateurs.

For the London Times, the Supremes' decision was "the biggest copyright case of the internet age". "MGM delivers body blow to piracy," gasped the Age. "One of the internet world's most popular hobbies - exchanging music and films online - was facing Armageddon yesterday after the US supreme court unexpectedly ruled unanimously against two of the main companies facilitating it," thundered The Guardian. If the Op-Ed writers had only their own mistaken reporting to work from, it's little wonder they came to the false conclusion that, "As the success of Apple's iTunes has proved, if there is a 'fair' legal method of downloading, most people will accept it." [Coincidentally, Apple sponsors the newspaper's online culture section - where you can 'Win An iPod'!].

But no triangulation between the two lobbies is necessary because history offers nothing but precedents where new technology has emerged to upset the compensation system, and yet everyone lived happily ever.

What's not in doubt is how badly the two lobbies have both let us down. Let's examine how. Some reasons are so obvious they're rarely stated any more, and some psychological aspects of the two lobbies' public postures need more attention, if we're to understand the impasse.

Broken Contract

The two sides of the Grokster case need each other. Without technology there would be no adequate monetization of the cultural output. Music is free to create, and free to enjoy, but it doesn't travel far without the technology and a framework capable of compensating and protecting the creators. There's a widespread view that copyright has problems, and these are indeed manifold - far more so outside the realm of digital networks. But there's no consensus that copyright is so broken that the historical precedents no longer offer us lessons for the future. Despite these problems, copyright works, and the public quite passionately defends the moral right of gifted, original creators to be compensated. It's the most sincere way of saying "Thank You".

But each side has broken its promise; each side has forgotten its social responsibilities.

The recording industry (and we're loath to make a monolith out of so many competing interests) has forgotten that its essential purpose is to facilitate the spread of this culture, rather than prevent its enjoyment. Suing 12 year old girls isn't the best advertisement for its cause. Neither is making indentured serfs out of its artists, nor is offering us a next generation of technology which is lower quality and more expensive than the last.

The technology lobby, for its part, has offered nothing more than a feeble 'Wernher Von Braun' defense for its creations. Tom Lehrer immortalized scientists' lack of social responsibility very elegantly:

"The rockets go up / who cares where they come down / That's not my department / Says Wernher Von Braun".

Yesterday the Electronic Frontier Foundation claimed that the Grokster verdict would "chill technological innovation".

Emerging Bicycle

We offer this illustration to make the point that technology innovation is a means to an end, and not an end in itself. We need a social settlement and much, much better technology. But at the end of the day, technology is our servant, not our master.

But why is the technology lobby proving so inadequate for these times? Utopian escapism is one explanation, but hardly a new one.

Perhaps it's because the people bitten with the technology religion seem to hate expressions of subjectivity, and as a consequence, place a very low value on originality. Because they see the world mediated through a machine, then what the machine tells them must be more real, more epistemologically correct, than anything that can be gleaned through observation or intuition.

So it follows that the computer network will divine works of great artistic merit as if by magic, and there's no need for the value judgements of imperfect humans to intercede, and mess up the beautiful cybernetic patterns. There's no need for labels to seek out hits, because they'll emerge by magic from the network, or for A&R departments to nurture artists (ditto), or for institutions to compensate the artists when, say, the trusty Paypal Tip Jar will do, in lieu of some as-yet-uninvented and no doubt "emergent" compensation system. Garry Trudeau satirised this in his Thudpucker series of Doonesbury cartoons, and we can put it even more bluntly: many in the tech lobby wouldn't value an original work of art if it hit them on the head. (Perhaps this explains the awful, awful quality of so much of what's available at the "Creative Commons" archive: the largest clipart library in the world).

But this isn't a world view shared by the public, who have little hesitation in handing over money to compensate artists. So to be blunt, the dweebs simply need to get out more.

For its part, the recording lobby shows some inkling of these issues, and what a privileged social position it enjoys. But of late, it's been acting very much as if this a divine right. They're the fools we tolerate if the social contract is maintained, but that's all we extend.

The recording lobby is ahead, I think, because of the widespread recognition that the principle of copyright is flexible enough to weather these storms.

Reasons to be cheerful?

Let's recap: we have a compensation crisis, not a copyright crisis on our hands. If the artists represented by the Recording Industry Ass. of America were being compensated, there would be no Grokster case. Computer networks allow the dissemination of culture on an unimaginably wide scale; the only aspect that's missing is a compensation framework.

And we'll soon have to choose between models that are good value for money, or bad value for money.

It really isn't such a hard choice. ®

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