Shooting yourself in the foot

Money can buy you new feet… or at least a bitchin’ wheelchair.

As you regular readers can probably tell, I’m a little behind on my writing. In fact, I just counted and I have 71 articles and ideas in the backlog. I’m not very proud of this fact. Because oral arguments were heard today in the Grokster case, I felt finishing up this article would be very timely.

Using the courts to solve your problems is like playing with loaded guns — someone is going to get a bullet by the time you’re done. In the legal revolver dance, everyone could be riddled with bullets in the end.

Worst of all, you could shoot yourself in the foot. You go to court with a smoking gun — an argument that you’re certain is unstoppable — and end up with a ruling against you that will inhibit your ability to fight that battle in the future. Just ask Eric Eldred, Lawrence Lessig, and the crew who litigated Eldred v Ashcroft. If you don’t remember, this is the case where Eldred wanted to publish books that would have been out of copyright if not for the Sonny Bono Copyright Term Extension Act. (I can only imagine the mess in the pants of those media companies’ execs when Sonny Bono got elected to Congress.) Lessig et. al. argued that extending the duration of copyrights was creating an effective monopoly, something that the Constitution doesn’t allow, thereby impacting free speech and other stuff.

In a 7-2 smackdown, the Supreme Court ruled that copyright legislation is solely the domain of Congress as enumerated in their Constitutional powers — Article 1, Section 8, Clause 8. The Courts must also defer to Congress since they’re in a better position to judge what the proper duration of copyrights ought to be (because Congress has better judgement than the Supreme Court?). 7-2 is not good. That means at least three Justices have to die or step down or get a lobotomy to have even a tiny chance of the case being decided differently.

Brewster Kahle, not content to have his ideals shot down by a Supreme Court decision, decided to challenge the lengthened duration of copyrights again. This case, Kahle v Ashcroft, focused on the shift from conditional copyrights (registering works to receive copyright protection) to unconditional copyrights (where everything is protected by copyright upon creation). The result is many works are now orphaned — still under copyright but without copyright holders available to ask for use permission.

Kahle and the Internet Archive got shot down. Citing the Eldred case as part of the reasoning, the case was dismissed outright from the district court. They are appealing the decision, but don’t hold your breath for a different answer.

If there’s any silver lining on this cloud, the U.S. Copyright Office had an epiphany about orphaned copyright works in the mean time. In Canada, a system is in place for individuals to petition for use of a copyrighted work when the copyright holder can’t be found. Our U.S. Copyright Office has asked for comments about what they should do. This does not mean they will do anything. This does not mean they will do the “right” thing, whatever “right” means. This does mean they recognize the problem and are hoping someone has a solution that will be amenable to all parties. I think Brewster should be celebrating this move by our government and drop the lawsuit to focus all energy on the copyright office, but he probably won’t.

As I’ve said before, going to court is a last resort. It’s an expensive, lengthy process where you’re gambling on a decision in your favor. The best advice is don’t go to court in the first place. The next best advice is don’t put yourself into a situation where going to court is even an option. Resolve your differences elsewhere — like Congress. For the same amount of money it would take to go to court in the first place, you can hire a lobbyist to go to D.C. and get a law passed saying the same thing.

Both sides think they have a smoking gun, but they’re blinded by their idealism. As the Eldred and Kahle cases show, the penalty for following this idealism blindly is a ruling against you. You don’t see straight and you shoot yourself in the foot. The next time you go to the revolver dance, you’re on crutches versus an opponent out for the kill.

But that’s not exactly why I worry about the Grokster case. Grokster thinks their right because their peer-to-peer software just a technology — not something forcing people to infringe copyright by sharing music and movies. The media industries see Grokster and other P2P software developers as thieves profiting off the copyrighted works they own. They’re talking about two different worlds entirely, and it’s up to the Supreme Court to figure out who’s right.

The difference between Grokster and their opponents is that the RIAA and cohorts have already put the money and resources into Congress, they have no present intention of accepting or working with P2P technologies and companies, and the courts are simply their current venue of choice. Regardless of the decision in this case, you can expect to see a new DMCA-ish bill raised in Congress shortly after — maybe the INDUCE Act, maybe something else. Those media companies don’t innovate; they just attack anyone who beats them to the money — player piano rolls, radio, cassette tapes, VCRs, seat belts, airbags… oops. Wrong industry.

I have a prediction for the Supreme Court ruling in this case which I won’t share now. I will say that the outcome of this case will not make a big difference in the end. MGM has the resources to pursue other options — legislation, new P2P system development, sicking zombie Sonny Bono on infringers — and Grokster doesn’t. I guess that means even if Grokster wins, they’ll lose.

If you lose in court, you can hope that the Copyright Office will decide to hear your argument instead. Or if you lose, you can go to Congress and ask them to see the problem your way. So don’t give up hope if you shoot yourself in the foot. The miracle of modern government will get you back up on fresh legs in no time — well, the government and a whole lot of money. And an army of lawyers. And lobbyists too. Don’t forget those lobbyists…

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