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Digital Tweed: The Morning After Grokster

7/21/2005

By Kenneth C. Green

The ‘Morning After’ Challenge

Not surprisingly, Grokster and Morpheus software were both still readily available on the Web in the days after the Court’s decision. Even as the decision was a clear victory for the plaintiffs, the music and movie industries confront a huge “morning after” problem: changing individual attitudes and behaviors about copyright infringement and P2P downloading. A clear challenge for the media industries is that in this case, the genie—free P2P software—has been out of the bottle for a very long time (at least as measured by Internet years) and has a growing user base.

BigChampagne (www.bigchampagne.com), a market research firm focused on media consumption, reports that the number of people in the US using P2P networks more than doubled between June 2003 and June 2005, from 2.9 million in 2003 to 6.2 million in 2005; moreover, the average download also more than doubled in size, from 3.97MB to 8.99MB. The entertainment industry’s inevitable follow-on lawsuits may eventually bankrupt Grokster and StreamCast, but the litigation will not necessarily change individual behaviors.

Now that Justice Souter has told us intentionality could lead to liability, perhaps consumer ISPs will acknowledge their obligation to promote copyright education.

The morning (and months) after the Grokster decision may not have big consequences for colleges and universities, since they have been dealing with the problem for some time. True, many in the campus community will understandably lament the potential impact of the Grokster decision on legitimate P2P networking and future technological innovation. But as previously noted in “Lost Under the Streetlight,” (Digital Tweed, November 2004), data from the Campus Computing Survey (www.campuscomputing.net) shows that the vast majority of four-year colleges and universities already have campus policies to address inappropriate P2P activity, as do more than half of community colleges. Additionally, growing numbers of institutions include copyright education as part of a mandatory (often online) “digital rights and responsibilities” program for new students and faculty.

Moreover, P2P infringement remains a consumer issue, not just a campus problem. Despite the RIAA’s continuing efforts to portray college students as the primary population of digital pirates, as of March 31, 2005, only 4 percent of the 8,400-plus John D'es targeted as part of the RIAA’s P2P lawsuits were college students.

Intentionality and Liability
That said, the months after the Grokster decision may get very interesting for consumer ISPs. Consider, for example, a billboard promoting SBC/Yahoo’s DSL service that I’ve seen in a number of locations in Los Angeles over the past few months (see image, page 10). SBC/Yahoo! is selling broadband access, but the marketing message specifically links the service to content: “faster downloads” of music and movies.



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