The Grokster Decision
So a bunch of folks around the inter-nets have been talking about this Grokster Decision that the Supreme Court of the States has come up with. Most news sites will boil it down to "Hollywood wins, File-sharers can be sued", or "Entertainment industry prevails against P2P" or something like that. It will be framed as total victory for Hollywood, and although the decision was unanimous, it isn't quite that bad.

The way I understand it, what the mighty SCOTUS declared was that it is indeed illegal to promote a device/technology/thingy with the purposes of copyright infringement. From Ars Technica:

Held: One who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, going beyond mere distribution with knowledge of third-party action, is liable for the resulting acts of infringement by third parties using the device, regardless of the device's lawful uses.

Basically, instead of a question of copyright, the questions are shifting to intent. Are you, as an inventor of something that can copy something into something else, intending for this invention to be used to infringe copyright? Have you missed a spot in ensuring that your device can never be turned to evil? If you can't convince everyone that the answer is no to both questions, you could be sunk like battleship. Cory Doctorow gets it pretty good in his editorial at Popular Science:

But what today’s decision will kill is American innovation. Chinese and European firms can get funding and ship products based on plans that aren’t fully thoughtcrime-compliant, while their American counterparts will need to convince everyone from their bankers to the courts that they’ve taken all imaginable measures to avoid inducing infringement. This is good news if you’re an American corporate attorney worried about job security, but not if you’re about to invent a new way to enjoy content. Both sides went to the court hoping for clarity on what is and isn’t legal in P2P, and instead, the Court tipped a fresh load of claymores into the decade’s most perilous legal minefield.

I like the use of the word thoughtcrime, myself.

Anyway, the whole shebang is going back to court (again) with this bit clarified so that it can be decided if Grokster was indeed intended for illegal distribution of files. So again, not good, but not cause for panic in the streets or anything. Even Hilary Rosen chimed in, saying that her former co-workers shouldn't get all uppity now that they've "won"--just look at what happened following the Napster decision. Legal victory does not instantly win back fans and customers. (In fact, if you read the post, it's almost has though Ms. Rosen has finally figured this whole thing out. Too bad she's not in power anymore.)

I am of the opinion that all this will change very little. It will not kill P2P, that cat's out of the bag (and if you've ever tried to bag a cat, you will know that the reverse is nigh-impossible). It will not kill piracy (same argument, only this cat was never in a bag to begin with). If I had to spell out the future of file-sharing and copyright, I think a few things could happen:

1. the industry will gradually realize it was wrong and start getting out of the persecution business and back into making and promoting music, movies and the like, OR
2. they will continue to try and exercise draconian control over everything they make, driving more customers away and demanding more legal crutches from the government until the industry collapses Great Depression-style, OR
3. same as above, only the government wises up and takes the crutches away, easing the industry on to a stretcher and into the morgue.

One way or another, we (the free, slightly-loopy copyright reform folks) will win, of that I am certain. What is left to decide is how long this victory will take to arrive, and what the casualties will be. Things could still get pretty nasty before they get better.  ¶ 6:33 p.m.