Tuesday, November 23, 2004

WP Nugget by a Stanford Professor

Too good to pass up.

Professor Lawrence Lessig has a stupefying piece up in the Washington Post editorial section today. To be truthful, I don't even know what point the gifted child is trying to make. Here's the opener:

A while back a federal court declared that the manufacturers of the most popular forms of peer-to-peer file-sharing technology are not liable for copyright infringement committed by people using their technology. Congress immediately sprang into action by taking up legislation to reverse the court's ruling. The goal is to make it clear that p2p manufacturers are indeed liable for copyright violations committed with their products. No doubt many hope this will drive the p2p companies out of business.

Technology people across the country are terrified by the idea. They fear that the standard being proposed by this law will force a wide range of technologies to justify themselves in federal court. A recent proposal from the Copyright Office purports to hold manufacturers responsible for "technolog[ies]" that "cause" copyright "infringement," if those technologies (1) rely on infringement for "commercial viability," (2) derive "a predominant portion" of their revenue from infringement and (3) rely on infringement to "attract individuals" to the technology.

I'm a strong opponent of this legislation, but not because I support copyright infringement. The technologies being attacked by this bill have plenty of important uses that have nothing to do with copyright infringement. This legislation would effectively eliminate them.

I'm not really sure what all this geek shit means. It sounds like there is software out there that makes it easier to file share. Companies got pissed and filed suit and the government stepped in and did... something. Lessig is opposed to this. Pretty straight so far except for the fact that if a Martian laser took out all of our P2P capabilities, I'd still wake up at noon on Saturday and make eggs.

Get ready for some whiplash here. This is the next paragraph:

But there is a silver lining here, and it has to do with, of all things, a very old technology: guns. For if Congress passes this bill, on what principled basis can it then refuse to hold gun manufacturers responsible for the crimes committed with their technologies

This is kind of an apples and oranges thing. If my crappy garage band gets a demo up online and you steal it, well piss on you. If you come in my house and shoot my wife, that rankles a bit more. And court wise, there will be a wide swathe in the acceptable monetary awards. Stealing my version of "Iron Man" is a bit less expensive than crippling me.

The parallels are unavoidable. Like p2p, firearms -- including assault weapons and cop-killing bullets -- cause harm. But also like p2p, guns -- as the NRA and its followers will tell you -- have "non-infringing uses" too. Thus, the gun lobby says, manufacturers should be exempt from responsibility for the crimes their customers commit. Guns don't kill people; people kill people.
But that argument will be much harder to sustain if Congress does to p2p what it has not done to guns. Of course, the same point is true of p2p technologies. It's not Kazaa that infringes Madonna's copyright; people infringe Madonna's copyright.

Well, I would rather someone steal a Madonna single than catch a double-tap steel point in the chest. And P2P's don't really scare me that much. If I was an aging diva with millions of dollars to hoarde, I might have followed that story a little more closely. As it is, I'm a middle-aged guy who pays $500 for a new Glock. That's a lot of money considering what you get. Most of the engineering was done several decades ago (just like Madonna's talent ran out several decades ago.)

The truly astounding thing is the man has no problem with violating the Constitution as long as its done in a way he sees fit:

Gun supporters may argue that the right to bear arms is protected by the Constitution, while the right to commit copyright infringement is not. But no one has a right to murder. At most the Second Amendment means that the abuses of cop-killing crazies shouldn't justify burdening my Second Amendment rights. Yet the same could be said about copyright infringement, given the amendment that stands just before the Second. There are many whose First Amendment interest in speaking, and in spreading their speech cheaply and broadly, will be burdened by banning p2p. So why doesn't the First Amendment at least mean what gun lobbyists say the Second means: that the abuse of copyright-killing crazies doesn't justify burdening my First Amendment rights in response?
I hope Congress doesn't harm the most important industry for growth in the United States by acting against p2p. But if it does, I don't see how it can, in all honesty, avoid doing the same with regard to firearms.

I'll translate: if they are going to screw with me legally, I think they should fuck with that guy over there even more. Because I'm talking about p2p and he's talking about a 9/11. So if the government spanks me on this I want retribution.

I'm beginning to lose the thread with these people, and that means I won't understand when judges agree with them.

The anti-p2p copyright legislation is bad for reasons similar to the assault weapons ban being bad: the legislation bears little relationship to reality, infringes Constitutional rights, and will not be effective in preventing copyright violations by file-sharers.

Think of it this way: the basic technology underlying file sharing is the same technology underlying the Web. Two computers can talk to each other and exchange data. They can do this via HTTP (the protocol that drives the Web), via FTP (popular for raw file transfers), via SMTP (email)... or literally hundreds of other choices that have various technological benefits and shortcomings.

There's nothing fundamentally different about p2p software. It just makes sharing files between two computers run by non-geeks easier and more efficient. Those files can be anything at all -- including copyrighted files shared illegally.

But you don't ban guns because they can be used to shoot someone illegally. Nor do you ban file transfer software because it can be used to transfer files illegally. In both cases, responsibility and liability rest in the person using the technology.
Thanks to Triggerfinger for making me a little less ignorant. I suppose I could have googled "P2P" before posting, but any result would probably not have been as simple as his explanation.
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