Original URL: http://www.theregister.co.uk/2005/03/29/it_vendor_grokster/

Silent tech majority invites Mickey Mouse to poison P2P

The killer app that killed innovation

By Ashlee Vance

Posted in Media, 29th March 2005 07:59 GMT

Comment It happened years ago. The "KA" appeared, and everyone embraced it. They hugged that "KA" with all their might, hoping it might correct a collapsing technology scene. Then, when the "KA" grew a sore, they dumped it.

The "KA" or killer app was Napster - and on a larger scale P2P software. P2P file-trading started to thrive around the same time that the Nasdaq started to dive. Intel saw P2P as a way to sell more processors and publicly cheered the technology. Sun Microsystems followed suit with the JXTA P2P protocols. A host of smaller software companies crafted flimsy business models around the P2P idea. These players recognized that the time to whine about not having a killer app had passed - one was gyrating right in front of them.

Now we find P2P software in front of the Supreme Court. And not only P2P software. Hollywood today will ask the Supremes to overturn an ancient decision protecting the use of VCRs and indirectly other devices that can be used to copy content for personal use. A huge chunk of innovation is on the line.

Has the tech industry that once salivated over P2P software's ability to chew through processors, hard drives and bandwidth run to the rescue? Not exactly.

The only company willing to stand out on its own and back the P2P software makers is Intel - the most vocal advocate of the old, illegal Napster (not the boring new Napster).

In a brief turned over to the Supreme Court, Intel dutifully told the judges of its patent and copyright love and insisted that people worship said patents and copyrights. Then, it got to the point. Intel begged the Supremes not to overturn the old "Sony" decision that protects VCRs and the like.

The Sony rule

"The development of innumerable technology-based products has depended on the Sony rule and its erosion would chill innovation and put a damper on one of the largest components of the U.S. economy: computer, software, consumer electronics, and telecommunications companies, many of whose products and services are built on technologies developed by Intel, contributed some $844 billion to the U.S. Gross Domestic Product in 2003," Intel wrote in the brief (PDF).

Intel's lawyers did everything they could to weaken the company's pro-P2P stance with fluffy language, but the message came through in the end. Intel, like many vendors, is most afraid of Hollywood's quest to clamp down on any product that could potentially be used to infringe on a copyright.

(Funny thing is Intel pulled in $34.2bn last year all on its own, while the worldwide music business made roughly double that at $75bn, according to the well-researched The Future of Music. Intel's looking a bit more important to the old bottom line from where we sit.)

While Intel was the lone vendor willing to speak on its own, a few more companies did find their voice. AT&T, Bell South, MCI, Savvis Communications SBC, Sun Microsystems and Verizon filed a brief together as a type of internet coalition. They too extolled the virtues of copyrights and then made similar arguments, as Intel, in favor of unfettered technological innovation.

"The surest way to depress capital investment in new Internet technologies, such as wireless data services, on demand video, and 'seamless mobility' - the transmission of content from television, to computer, to cell phone, to new devices yet to be created or marketed - is to modify Sony by adopting any of the malleable, multi-factored tests proffered by petitioners [Mickey Mouse and Friends] and their amici," the vendors wrote (PDF).

Other than these few companies, the direct IT vendor votes in support of P2P and Sony were sparse. The rest of the pro-Grokster briefs came from lawyers, professors, recording artists, civil liberties groups and free software fans. The Consumer Electronics Association, the Computer and Communications Industry Association, and the Home Recording Rights Coalition also spoke up for their members.

You might think some smart folks over at Seagate, AMD, Cisco, Adobe, IBM, Apple, HP or EMC would consider for a minute how a P2P revolution could benefit them. No such luck.

Instead, you'll actually find that the Business Software Alliance (BSA) sided with the movie studios and record labels in its brief. That means Microsoft, Apple, Dell, HP, IBM and Cisco indirectly tossed their lot in with Mickey Mouse. (Intel is a member of the BSA too and seems to be playing both sides.)

The BSA basically makes a case for DRM (digital rights management) makers, saying this type of control technology will likely be the only way truly to protect content in a digital age. No surprise there, since the BSA represents DRM makers. In addition, the software vendors urge the high court to be sure to see if the P2P software companies had direct infringement in mind when they created their applications. If so, they should be punished - big time. That's what the BSA does to software pirates.

To its credit though, the BSA comes out especially hard against altering Sony, putting the organization in line with the other pro-Grokster, pro-innovation tech firms.

"Sony Betamax established a fair balance between providers and users of multi-use and general purpose products and technologies that are capable of substantial non-infringing uses, on the one hand, and copyright owners seeking to protect their works, on the other," the BSA wrote (PDF). "Sony Betamax also provides a clear and predictable test upon which BSA members and many others like them have for more than two decades relied in designing, manufacturing, advertising and distributing their technologies."

Other Rodent defenders include "legal" online media shops such as Napster, Movielink, CinemaNow and MusicNet. DRM maker Macrovision also chimed in along with the usual professors, lawyers, and economists.

(You can find a full list of the Pros and Foes here.)

Strange bedfellows

There is a depressing mood hanging over this whole mess. In this time of Bushness, you can't help but feel that the Supreme Court will overturn Sony and put some temporary power back in the hands of the dinosaurs. "Let the eagles soar," as Ashcroft liked to sing. The Bushies have already said they'd prefer to see these P2P culprits be put down. We're not quite sure how the Republicans ended up siding with effete, drug addled Hollywood types. But they did.

And then you have this monster of a technology industry - the engine of America's growth - that can barely muster a few words in its own defense. The IT crowd - other than Microsoft and to some degree Intel - has never been big on Washington; but come on. Are these companies that produce the life blood of our economy really going to be pushed around by a stuffed mouse with buttons and helium balloon shoved down his throat? Only one company had an opinion all its own on the matter? Shame.

It's not even just lack of voice in the briefs that is depressing. The big whig vendor brass has been silent on the matter. No one has had the guts to call out Hollywood for the ancients they are. No major company been smart enough to take a strong, public stand on P2P. That McNealy guy at Sun usually has a lot to say. Instead, they've twiddled their thumbs as the RIAA sued your children, grandparents and naval cadets.

If the media moguls - the pigopolists - win, then the tech vendors should tuck their tales between their assess and waddle off without a sound. No sense whimpering on the way out if you didn't roar on the way in.

Lucky for the vendors, the pigopolists can't win this one in the long run. The digital age started too many years ago to bottle it up now.

Let's see how Apple likes it though when iPod sales are halted for a few years as the courts decide how legitimate the device really is. Bite your tongue, Steve. ®

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