Grokster and innovation

Mark Cuban has a good post about the backwardness of the DMCA (Digital Millenium Copyright Act), and the impact of the upcoming MGM v. Grokster appeal.

In October of 1998 the Digital Millenium Copyright Act was passed. The DMCA was basically a law that set a very un-nerving precedent. That the government would do what it could to protect the interests of content owners at the expense of technological development.

The DMCA in and of itself didnt kill technological innovation. At the time it was passed it was more nuisance than anything else. Digital content wasnt all that prevelant and there certainly wasnt much money in it, so not many people cared that our tax dollars were being spent to make sure that your internet radio station never played more than 3 songs in a row from the same artist. Or that it became illegal to have a 24 hours a day Beatles (or any other artist) station.You know those DVDs you have that are scratched ? How nice it would have been to be able to make a copy of them first, knowing that the kids are going to get their hands on them and ruin them at some point ? You cant. Its illegal. Its illegal to make software that allows you to make backup copies. You paid a lot of money for your DVDs. The movie industry has made billions upon billions from DVDs. Many movies make more from DVDs than from theatrical release. They get your hard earned money, and they make it illegal for you to make a copy to keep just in case your DVD gets scratched. Thats wrong.

its the law of unintended consequences. Few people knew that DVDs would basically replace VHS in our homes. Few people had any idea that DVDs would get scratched and be useless with regularity. No one had any idea that trying to make a protective backup of that DVD would be illegal. It was perfectly legal to do it with VHS tapes.

I don't purchase DVD's almost for this exact reason - once they're scratched, they're completely worthless. But the DMCA was a handy way for the entertainment industry to recoup perceived losses from the easy piratable media of the VCR.

The case is about whether Peer to Peer software that enables the P2P networks most of us read about and few of us use, should be illegal or not. The big entertainment companies are pushing the argument that because some of their content gets stolen through the use of this software, that all uses of the software should be illegal.

The are NOT arguing that there arent legitimate reasons to use the software . They acknowledge that businesses and individuals are using the software for purposes other than those that impact their music or movie businesses. They just feel that because it impacts their business (they still dont know if its a postiive or negative impact), in a way they cant control, its better to make it illegal rather than adapt to the new technology.

In reality this case isnt about whether music or movies are illegally downloaded using Peer to Peer sotware. This is purely about control. The entertainment industry wants control over technology that could have an impact on their business.

This point is similar to what the Betamax decision affirmed - that just because a technology can be used for illegal purposes, this does not mean that the technology itself is illegal.

Anyway, my point is that this is a very important case before the Supreme Court. It will likely have an impact for years to come and, in the event of a close vote, could become some sort of litmus test for future nominees for the Supreme Court. I believe the Court will do the right thing and not make any sort of technological innovation illegal, but stranger things have happened...