Separating "consumer rights" from copyright

My condolences to those affected by yesterday's terrorist attacks in London. Funny that words escape a guy who regularly runs well past editorial limits, but my thoughts go out to those affected by this tragedy.

My condolences to those affected by yesterday's terrorist attacks in London. Funny that words escape a guy who regularly runs well past editorial limits, but my thoughts go out to those affected by this tragedy.

I've been a busy bee this week, spending Microsoft dollars on a business trip to Mountain View. So, I've been a bit quiet. Quiet, however, doesn't mean I haven't been doing anything blog-related.

I've been poring over last week's Supreme Court ruling relating to Grokster and Streamcast. This case was a re-examination of whether companies who make products with the potential to infringe on copyright should be held liable. As everyone knows, the Justices came down hard on Grokster and Streamcast because there was clear proof of an intent to encourage infringing uses, an action that was ruled illegal and thus not subject to the protections (uncontested in this ruling) of 1984's Sony vs. Universal Studios ruling.

What struck me as particularly important, however, was the current ruling's explanation of the point of the "fair use" doctrine established in that precedent setting battle, the one that officially legalized sale of the VCR. Many in online forums have talked about "fair use" as if it were a fundamental "right," and thus a means by which to prevent content companies from using technology to prevent the copying of their products.

I always thought that was nonsense, because why would a case designed to prevent content companies from hindering the rollout of new technology by other companies be used as basis to prevent content companies from rolling out their own technology. But I'm just the crazy guy shouting through a paper towel tube on the street corner (or the blogging pages at ZDNet). It's generally agreed that Supreme Court Justices aren't so crazy.

The "fair use" doctrine was designed to strike a balance between the constitutionally-sanctioned inducement to create offered by copyright law and the technical innovation which may be discouraged by too rigorous an application of it.  As Justice Souter stated, writing the opinion of the Court:

The more artistic protection is favored, the more technological innovation may be discouraged; the administration of copyright law is an exercise in managing the trade-off.

In other words, "fair use" has a specific goal, which is the maximization of benefits derived from both artistic creativity and technological innovation, which on occasion can run at cross-purposes. This isn't a question of rights, but a question of utility. Does "fair use" as interpreted contribute to a better economic balance, or favor one interest at too great an expense of the other? If an interpretation leads to a state of affairs where the conflicting interests are not well balanced, then that is an incorrect interpretation.

In fact, Justice Breyer, in his "partial" dissent (he agree with the ruling, but disagreed with particulars of arguments made by other justices), almost implied that the fuzzy Sony standard would be better than a strictly-interpreted one, given that a resulting lack of flexibility might imperil a proper balance. After detailing ways the market might alleviate the problem of rampant media piracy on its own, Breyer stated:

...the added risks that modification (or strict interpretation) would impose upon technological innovation, leads me to the conclusion that we should maintain Sony, reading its standard as I have read it

Furthermore, Breyer mentions technological solutions to the problem of piracy, without once stopping to consider if a right is being infringed (thus undermining the notion that rights are what matter here):

Further, copyright holders may develop new technological devices that will help curb unlawful infringement....Other technology can, through encryption, potentially restrict users' ability to make a digital copy

Equally notable in this case was the new standard of proof by which to prove intent to encourage infringing use. Besides Grokster's and Streamcast's efforts to attract known infringers (previous customers of Napster) and failure to attempt to filter copyrighted media, the mere fact that they had a business model almost entirely based on widespread infringement served as contributory proof:

As the record shows, the more the software is used, the more ads are sent out and the greater the advertising revenue becomes. Since the extent of the software's use determines the gain to the distributors, the commercial sense of their enterprise turns on high-volume use, which the record shows is infringing.

Though the justices note that (t)his evidence alone would not justify an inference of unlawful intent, the presence of such a business model certainly provides motive. When combined with other aspects of their business history (pursuit of infringers, lack of filtering technology), this contributed to proof as surely as large life insurance policies on mysteriously-deceased family members might contribute to a murder conviction.

That's interesting, and in my opinion, will practically end the file exchange software business given the difficulty of finding business models which wouldn't have a high illegal trade component. Of course, as other ZDNet bloggers have pointed out, that might serve to drive file trading software deeper into the open source bayous.

Without any solid business backing it, though, I expect that such software will face difficulties. The less technical majorities who populate the consumer software market are less willing to search for software, and lacking a Grokster or Streamcast to help them, are less likely to use it should they find it. Likewise, escaping by way of an open source back door certainly won't encourage content companies to spend time catering to users of open source software, which could be a particular problem in a DRM future that "DVD Jon" has more trouble cracking.

Personally, I was swayed by the opinions penned by Souter and Ginsburg, as well as the partial dissent authored by Breyer. On the one hand, there is recognition that the digital world is different than the analog world of the VCR:

The tension between the two values is the subject of this case, with its claim that digital distribution of copyrighted material threatens copyright holders as never before, because every copy is identical to the original, copying is easy, and many people (especially the young) use file-sharing software to download copyrighted works

...The argument for imposing indirect liability in this case is, however, a powerful one, given the number of infringing downloads that occur every day using the StreamCast's and Grokster's software.

On the other hand, the advent and subsequent success of legal download alternatives have cut into the illegal trading business, as Breyer notes:

...advances in technology have discouraged copying by making lawful copying (e.g. downloading music with the copyright holder's permission) cheaper and easier to achieve.

Furthermore, Breyer also notes that technological protections have grown more powerful, thus arguing that the market is sorting itself out without the need for redefinition of the Sony precedent.

Either way, should a new case require closer examination of the Sony case, I feel more confident that the Justices are asking the right sort of questions, as well as approaching it with the right mindset. Copyright law has a point -- the encouragement of economic goods -- and the Justices don't plan to lose sight of it.