Thursday, March 03, 2005

Is the Internet really intended to promote MGM's business model

From Eben Moglen amici curiae brief in the forthcoming MGM v. Grokster case on behalf of the Free Software Foundation and New Yorkers for Fair Use.
At the heart of Petitioners’ [MGM's] argument is an arrogant and unreasonable claim—even if made to the legislature empowered to determine such a general issue of social policy—that the Internet must be designed for the convenience of their business model, and to the extent that its design reflects other concerns, the Internet should be illegal. …

Petitioners’ view of what constitutes the foundation of copyright law in the digital age is as notable for its carefully-assumed air of technical naivete as for the audacity with which it identifies their financial interest with the purpose of the entire legal regime. …

Despite petitioners’ apocalyptic rhetoric, this case follows a familiar pattern in the history of copyright: incumbent rights-holders have often objected to new technologies of distribution that force innovation on the understandably reluctant monopolist.
From Intel's brief in the same case.
The clear rule of law this Court announced in Sony has served the nation well for more than 20 years. Intel, which provides the digital building blocks at the heart of the information economy, and other technology innovators have relied on the Sony rule in developing and deploying digital technologies that, though designed for noninfringing uses, could be put to infringing uses. The various tests proposed by Petitioners would require an inventor to predict, at the time it creates a new product, not only how people will use a product that has yet to be designed, let alone introduced in the marketplace, but also which of the various potential uses will ultimately predominate over the other potential uses. Such predications are impossible in the real world, especially since the uses to which products are put routinely change over time.

Digital technologies are by their nature copying technologies; there will always be a risk that any digital technology, however well intentioned its designer, will be put to infringing uses. Faced with impossible predictions about how as yet undeveloped technologies might be used, ambiguous tests that would be unpredictable in their application, and nearly limitless statutory damages for guessing wrong about the unknowable, innovators, such as Intel, would grow timid. It would be irrational to bring new products to market in the face of massive uncertainty; innovators, such as Intel, would have no choice but to withhold from the market socially and economically useful products. The national economy, which has grown through technological innovation over the 20 years since this Court decided Sony, would suffer. ...

The entertainment industries have repeatedly predicted that new technologies would destroy their businesses. Although their concerns are understandable, new technologies that are capable of substantial noninfringing use have, over time, benefited both the entertainment industries and the public. For example, professional baseball initially barred radio broadcasts of games out of fear that radio would reduce attendance; the film studios feared that VCRs would be the end of movie theaters (and before that, refused to license theatrical movies for television distribution); the music industry feared that free, over-the-air radio would put record distribution out of business; and the film studios initially resisted the introduction of DVD technology. Ultimately all of these innovations proved enormously profitable to entertainment companies.
Via Copyfight.

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