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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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March 28, 2005

New York Times Editorial Board Blows It on Grokster

Posted by Ernest Miller

Today, the New York Times (reg. req.) editorial board's lead editorial is on MGM v. Grokster. They manage to all but regurgitate Hollywood's talking points on the issue (When David Steals Goliath's Music):

The battle over online music piracy is usually presented as David versus Goliath: the poor student in his dorm hunted down by a music conglomerate. It is easy, in that matchup, to side with the student. But when the Supreme Court takes up the issue this week, we hope it considers another party to the dispute: individual creators of music, movies and books, who need to keep getting paid if they are going to keep creating.
Well, let's just confuse two issues here, shall we? Normally the narrative about college students being hunted down by Hollywood is about direct infringement; the college student is using P2P to directly infringe copyright. We can argue about that issue (I have no problem, generally, with the students being sued for direct infringement), but that isn't what the issue is in Grokster v. MGM. Even if Grokster prevails those students will still be liable. Grokster is about whether companies that make the tools that others use to infringe should be held liable for those other individuals' actions.
At least 90 percent of the material "shared" on Grokster, and perhaps more, is copyrighted.
Wow. Where did they get that statistic? Jack Valenti's talking points? And why did they just say "copyrighted"? Why didn't they use a statistic like 90 percent of the material shared infringes copyright? Perhaps because just because copyrighed material is shared doesn't mean it infringes?
Many big entertainment companies are backing the suit, along with marquee-name musicians like the Eagles and the Dixie Chicks. But so are some creative professionals - represented by groups like the Authors Guild and the Professional Photographers of America - for whom even a few thousand dollars in royalties makes a big difference.
Yeah, and how about the artists who support Grokster and for whom a few thousand dollars in exposure makes a big difference?
The technology community has rallied to Grokster's defense. Its most radical members argue that "information wants to be free" online and disparage the whole idea of intellectual property.
Straw man, straw man, straw man. Why not write that the MPAA has frequently stated that copyright should be "forever minus a day" and that "fair use" isn't a right? There are extremists on both sides (more in Hollywood, I would imagine) but it is a mere rhetorical trick to mention only one side's extremists, especially since the Supreme Court isn't going to decide whether or not copyright should be abolished.
The legal case against Grokster is far from a slam-dunk, and we have been wary of it in the past. The court ruled, in a landmark 1984 case, that Betamax video recorders were legal even though they were used to copy copyrighted material, because they had significant legal uses. It is true that there are legal uses for Grokster - not every file exchanged is copyrighted. But it is notable how much illegal use predominates, and how much its business model relies on theft.
Wary of the argument in the past? Where is the wariness now? How does the editorial board propose to distinguish between a future good VCR and a future bad P2P program?
The founders wrote copyright protections into the Constitution because they believed that they were necessary for progress. Movies, music and books require investments of money and time. If their creators cannot make money from them, many will be unwilling or unable to keep producing. Or they may have to finance their work in troubling ways, like by building in product placements or taking money from donors with agendas.
Grokster is not going to determine whether copyright exists or not. And, uh, hello ... there already seems to be a lot of product placements in current works and plenty of copyright holders are already taking money from donors with agendas. Guess what? For a variety of reasons (such as the death of the myth of objectivity), such things will continue to increase whatever the decision in Grokster.
Grokster's supporters are justified in worrying that if the courts are too quick to rein in new technology, innovation can be stifled. They are also right to point out that copyright has sometimes been given too much protection, notably in the Copyright Term Extension Act, which gratuitously added 20 years to existing copyrights. But these concerns do not erase the continuing importance of intellectual property, which is unquestionably under assault.
Again, how does Grokster erase the continuing importance of intellectual property? How does the editorial board propose prevent overly stifling innovation, what they admit is a legitimate concern? It is easy to say, but very hard to do in practice. See, the INDUCE Act.
Both the court and Congress should be sensitive to evolving technologies. But they should not let technology evolve in a way that deprives people who create of the ability to be paid for their work.
That is sort of a blanket statement isn't it? There are lots of technologies that deprive people who create of making money for their creation. The VCR, for one. The VCR is used to infringe copyright, which it seems, automatically takes the money out of the hands of creators. Should the evolution of the VCR have been stopped? Brilliant editorial New York Times, bravo. Cheap rhetorical tricks, unsubstantiated statistics, and complete lack of an actual solution. Is there any error that wasn't made?

Comments (4) + TrackBacks (0) | Category: File Sharing


1. Scote on March 28, 2005 11:42 PM writes...

I love this statement you quoted:
"Both the court and Congress should be sensitive to evolving technologies. But they should not let technology evolve in a way that deprives people who create of the ability to be paid for their work."

Ergo, no technology that makes a current business less profitable should be legal. This argument in favor of the profit of the Status Quo would hold our economy in a technological stasis that would lead to a crippling stagnation. Under this proposed standard, the cotton gin unfairly keeps lint pickers from earning their livelihood, refrigerators keep ice delivery services from staying in business, and the radio unfairly keeps musicians from earning a living by playing music in person.

This "editorial" reads more like the WSJ than the NYT. I am very disappointed.

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2. Ajay on March 30, 2005 04:14 AM writes...

The death of the myth of objectivity? Care to elaborate on how that plays into this? I read your earlier post on objectivity in journalism but how does that relate to copyright holders selling out? As for your statements about objectivity in journalism, I broadly agree with you. However, I have to point out that TV news is held to a different standard because it's a shared resource that is licensed by the government. Since the amount of broadcast space has been limited (at least till recently), there is weight in the call for more objectivity there.

btw, your search function asked for a password when I tried to look up any previous posts on "objectivity", then returned the journalism post when I hit cancel.

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3. TX on March 30, 2005 04:42 AM writes...

The marketplace will always find an answer to any side effect of technology.
The creator of technology should not be held responsible for its subsequent misuses, just as we should never blame the founders of quantum physics for nuclear weapons.

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4. Ernest Miller on March 30, 2005 06:37 PM writes...


The New York Times editorial board frets that artists will have to take money from people with agendas. What, and there weren't any agendas before? This is the myth of objectivity. Now, it is likely, even without Grokster, that artists will increasingly take money from people with agendas or, at least, be more transparent about it. What use will they have for pretending to be objective?

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