"Publishing is a very ancient and crafty industry that existed and flourished before the idea of copyright even existed. When copyright came into existence, the publishing industry dealt with it and moved on. My suspicion is that everything that's been going on lately will amount to a sort of fire drill that will force publishing to scurry around and make some new arrangements so that they can get back to making money for themselves and for authors."- Neal Stephenson, author.
This course has been a discussion of what the "new arrangements" might be. For some this means treating intellectual property the same as tangible property, with all of the strong protections the law provides. For others this means abolishing ownership of copyright, forsaking legal protections of such property, and adopting a more socialist approach. Historically, the direction has been towards strong rights, and there is little reason to believe this will change.
A few weeks ago, most of our class felt that the Supreme Court would take the Grokster case on appeal. Since then, the Court has indeed granted certiorari and will be hearing the case. The outcome of the case will likely shape much of any new arrangement for the time to come. Therefore, talking about any future of copyright is made all the more difficult. That being said. While prediction is difficult, I believe the future of copyright will hinge on the Grokster decision and that Grokster will be overturned.
Why? Because such a decision will hold file-sharing companies under secondary liability.
Secondary liability will bring accountability to those who seek to profit most from file-sharing. This sends a consistent message to the public that copyright law will be enforced and that bad actors will be punished. This is a consistency that is currently lacking in copyright enforcement. The widespread lack of enforcement - especially against those who profit most from ongoing, illegal sharing - leads many to the belief that copyright laws are unenforceable.
Secondary liability also brings about accountability without unduly restricting the underlying technology of p2p. Unlike certain legislation, like the DMCA for instance, such an approach does not ban any particular technology. While an all out prohibition would achieve much of the same consistency of a secondary liability approach, its harm to potential, future uses of technology is practically assured. Indeed, any liability should instead be calculated based on balancing beneficial uses of the technology against harmful uses of the same technology.
While there is an argument that harmful uses of a technology are often impossible to predict, there can be a reasonableness requirement on any liability in cases where the harm caused was not foreseeable. More troubling is that the mere possibility of litigation will likely dampen some progress, because of uncertainty. However, those who create enabling technologies will often be in the best position to control its use. Therefore, they are in the best position to forestall possible litigation.
The introduction of secondary liability would greatly alter the landscape of file-sharing as it currently exists. However, this will do little to file-sharing software that's already out there. Also, there will always be companies like Kazaa that seeks safe legal havens in other areas of the world (much like Hollywood fled to California in the early motion picture days). An overturning of Grokster does not mean the end of file-sharing. However, if the credibility of the copyright law needs to restored, the Supreme Court both has the opportunity and the power to do exactly that.