CPAC Wrap-Up: Intellectual Property Edition

One panel Friday, billed as a debate on intellectual property rights, was primarily a face-off between erstwhile–Solicitor General Ted Olson and American University law prof Peter Jaszi on the Grokster case due before the Supreme Court soon. (The 9th Circuit rulling, following the Betamax principle, held that the makers of a peer-to-peer client which can be used for either fully legal or copyright-infringing transfers aren't liable when their users commit the latter.)

Jaszi was in defense of Grokster (and the Betamax principle), though Olson—presumably dumbing himself down for a potentially tech-novice crowd, since by all accounts he undestands the issues quite deeply—gave a languorous and not-terribly substantial brief against the company. (He probably reminded the audience four or five times that the Founders were so cognizant of the importance of copyright that they put it right there in the Constitution.) There were some disappointingly facile Jack Valenti–style analogies to shoplifting.

Past the boilerplate, the substance of Olson's argument seemed to be that one can distinguish Grokster from Betamax by looking at the relative proportions of copyrighted vs. public domain material flowing over the network. Most uses of VCRs—he asserted, anyway—are presumably non-infringing stuff like "time-shifting" programs, while supposedly something like 90 percent of the traffic going over p2p networks is copyrighted material.

A minor quibble, but it's not obvious to me (though I'm not that well versed in the nitty-gritty of the law here) that one can assume a transfer is infringing just by noticing that it's copyrighted content going over the wire. It's clearly fair game to take a CD I own and rip it to my computer or iPod. If I've left the CD at home or maybe scratched it before I got a chance to rip it or whatnot, there's at least an intuitive case to be made that, having purchased the content already, I'm entitled to download it. Come to think of it, while I'm certain this isn't considered legal, it's a little puzzling that if I plug my computer into the TV and record a broadcast of Buffy the Vampire Slayer, that's a protected fair use—time shifting—but if I download the self same broadcast from my neighbor, who recorded it the same way, we're in piracy territory. Anyway, long story short: I don't know that we can assume a transfer of copyrighted material is ipso facto infringing.

The more serious problem seems to be that on Olson's appoach, liability turns on the proportion of the use of a given technology that's infringing—but that's a variable that's constantly, well, varying. One can imagine a particular p2p network starting out at t1 mostly as a means for hippies to exchange live recordings of shows by Phish and the Grateful Dead—a perfectly legal and very widespread practice permitted and, indeed, encouraged by the bands. As the network grows, people start increasingly trading back and forth songs ripped off commercial CDs, which comes to constitute a majority of the traffic over the network at t2. The same result could be achieved if, for whatever reason, live recordings became less popular (or collectors had gathered as many as they wanted), so that the same volume of infringing traffic constituted a greater proportion of the total as the live-show traders became less active. Then at t3, as home recording and mixing technology becomes increasingly cheap and easy to use, there's a big trend toward amateur musicians and DJs using the network to freely share their own creative work with others freely, for the same range of motivations that inspire people to blog for free—a desire to just be heard, hopes of getting noticed or "discovered" by big media, whatever. At t3, after growing still further, the network now comprises mostly this sort of traffic. It'd seem, on Olson's theory, that the creators of the network are fine at t1, liable for contributory infringement at t2, and then once again not liable at t3. And since we're talking about proportions, this could be the case even if the absolute volume of infringing traffic remains constant or grows from t2 to t3.

One might, of course, resort to assessing intent, but that sounds like a recipe for a whole bunch of messyness. If I create a product that I recognize can be used to infringe copyright, realistically predict that some unknowable proportion of users will do so, and go ahead and sell it anyway, do I "intend" it to be so used? And whether I do or not, can I predict intent a court might divine with enough certainty to not just give the whole risky business a pass?