Wednesday, March 30, 2005

NYT and WaPo drop ball on Grokster

The Grokster case makes for infuriating/exciting times in the land of intellectual property. Both NYTimes and WaPo have come down on the wrong side of the case, and in both cases the editorial was so poorly reasoned that I have difficulty understanding what's going on.

The NYTimes and WaPo editorials both amount to the same argument: that Grokster is different from previous "infringement-enabling" technologies like the printing press, the photocopier, and the VCR because Grokster is designed to facilitate "theft". This statement is plainly false: Grokster is a content-neutral technology, just like the Web, just like the VCR, just like the photocopier and the printing press. Grokster carries whatever bits its users put on the network. The only evidence that Grokster was designed to facilitate "theft" is that some substantial fraction of existing traffic does, in fact, consist of copyright infringement. But look at the history of the VCR, the photocopier, and the printing press, and you can see that infringement was always a major (if not predominant) use early in the technology's history. But gradually, some combination of laws and social norms brought the usage back into balance again. The Grokster case is about preemptively banning certain technologies before they are even brought into market, before that balance can be found.

I literally cannot understand --- I cannot understand, it does not compute --- how any disinterested and thoughtful person could honestly make the arguments that NYTimes and WaPo are making.

So, if reason's not the driving force here, I can only conclude that social-network-based groupthink plays a role. The editors of the NYTimes and WaPo move in social circles where they work with, play golf with, have dinner with, etc., people in influential positions in the big media conglomerates. Bill Keller, and other top editors at major newspapers, do not socialize with Richard Stallman or Lawrence Lessig; they socialize with people who write, promote, or distribute books, magazines, movies, television shows, and music. And so by social osmosis, they absorb the mindset and values of these people, and not the mindset of people who actually, you know, understand the technology and the law.

It's a sad and cynical conclusion to draw, and I would love to be proven wrong, but it's the only one I can draw when these editorials contain such ridiculous tripe.

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