Closing the barn door — the Grokster case

Tomorrow, the Supreme Court will hear oral arguments in the case of
MGM vs Grokster (for background and documents from both sides, see the Electronic Freedom Foundation’s site). Gorkster and the other defendants are peer-to-peer file sharing systems that MGM (and others) claim facilitate illegal copying and sharing of copyrighted materials (specifically music and videos). Technically, the case is an extension of the 1984 Sony Betamax case concerning secondary liability for copyright infringement (can the maker of the technology be held liable for the infringement by the users).
However, the case may already be irrelevant. A recent study by the Pew Internet & American Life Project, Music and Video Downloading Moves Beyond P2P shows that about half of the people who download music or videos have found ways outside of traditional peer-to-peer networks or paid online services to swap their files – most often direct sharing from an iPod or MP3 player or through email or instant messaging.
If millions of people are sharing their favorite tunes via email, nothing short of a massive police-state can stop it.
As has been stated so often as to become almost a cliche, digital technology has fundamentally altered the nature of the music business (and soon, the movie business) — just like the printing press altered the business of writing. Those industries need to develop a new business model. Steve Jobs amazing success at Apple with the iPod is an example of what can be done (see story in Business 2.0). Larry Lessig’s Creative Commons is another example, as more and more artists use the concept (see Washington Post story “Creative Commons is Rewriting Rules of Copyright“)
But more creative thinking (in what is supposed to be a “creative industry”) is desperately needed.

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