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This Ain’t No Party, This Ain’t No Disco

Jun
27
2005

In the future, when the grey-bearded historians of Geekdom choose the moment when the tech business was forced to grow up, chances are good it will be the Monday in June when Silicon Valley awoke to find out that its innovators and inventors could be held liable for their mischief.
The Wizards of the Web are formally on notice: If tech wants to be in business and stay in business then it better start acting in a business-like manner. No foolin’ around.
The Supreme Court has given geek determinism – the often adolescent belief that technology will triumph and that anything that stands in its way is lame, brain dead, foolhardy and stupid – a well-deserved smack upside the head. In its ruling today on MGM v. Grokster, the court said that the nudge-nudge, wink-wink advertising and promotion that Grokster and Streamcast engaged in to promote themselves as alternatives to Napster was inducements for customers to break the law.

“The classic instance of inducement is by advertisement or solicitation that broadcasts a message designed to stimulate others to commit violations. MGM argues persuasively that such a message is shown here. Three features of the evidence of intent are particularly notable. First, each of the respondents showed itself to be aiming to satisfy a known source of demand for copyright infringement, the market comprising former Napster users. Respondents’ efforts to supply services to former Napster users indicate a principal, if not exclusive, intent to bring about infringement. Second, neither respondent attempted to develop filtering tools or other mechanisms to diminish the infringing activity using their software.”

In plainer language: If you invent it and sell it, you can’t completely avoid responsibility for what you’ve done. Particularly if your marketing campaign relies very heavily on the “screw the man” thinking that passes for macho street cred in the Geek community.


When Napster – the first peer-to-peer software promoted and used to share music – was ruled illegal, most tech folks shrugged. They knew plenty of people who were writing similar programs and it was clear to everyone that another file sharing service would soon rise up and take over what Napster started. That’s exactly how Grokster and Streamcast’s Morpheus built their businesses; relying heavily on the tech community’s belief in its ability to change the world and the arrogance that far too often accompanies that belief.
But tech folks have only just started to change the world. Hollywood has been at it for a much longer period of time. And they have the pretty people on their side. And the rest of their bag of tricks relies on a pretty good argument: artists, writers, musicians and the businesses that employ them need to be compensated for their work.
The idea that people should get paid for their work hits hard at a contradiction embodied in all the arguments about file sharing. Geeks — code jockeys, programmers, engineers – even those in the open-source community – are coin-operated. They like to get paid. So why is Hollywood different? Because it’s business has been around longer? Because it’s more corporate? Because, well, because Geeks are smart and smart people should get paid to be smart?
Those aren’t legal arguments. Nor are they politically viable. That’s the hard reality that has to now be faced as Silicon Valley and the tech community figure out what to do next.
With reassurance from the Supreme Court, it’s pretty clear that the Motion Picture Association of America and the Recording Industry of America are going to start suing more aggressively, more widely, demanding bigger judgments to accompany new liability claims. And it’s equally clear that small companies, individual inventors and others are going to rack up the legal bills. If the judgments don’t get them, the lawyers will. It’s not going to be pretty.
So tech will probably head off to Congress for relief. They won’t lack for resources. The valley gave millions to Democrat John Kerry’s presidential election effort and no one liked Kerry very much. Lawsuits like the ones contemplated by MPAA and RIAA triggered the last big Silicon Valley-based lobbying push – a successful effort to reform securities law to make it harder to sue directors. This time, the stakes are just as high.
If Hollywood’s lawsuits are persistent and ugly enough – if it keeps going after 20-year-olds – consumers could quickly and easily be brought to the tech community’s side. The iPod is a cherished device. So is TiVo. It’s not that hard to think of ways to use those innovations in smart consumer-oriented campaigns to change the law to protect inventors and innovators.
But first, Silicon Valley’s tech wizards have to do something Hollywood has done for years: They have to make their customers like them. There are far too many folks out there who prefer to rely on their understanding of technology’s flaws – falling back on snide references to “operator error” to explain why a device doesn’t work the way it should, calling a bug a “feature” and praying no one notices until the next upgrade – to cover up the simple fact that much of what they produce isn’t ready for prime time use by normal Joes and Josies.
Apple’s iTunes and TiVo have taken great pains to cooperate with Hollywood’s two main businesses, the recording and film industries. The rest of the tech community valley would do well to emulate their successful piecemeal approach.

Share  Posted by Chris Nolan at 1:05 PM | Permalink

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