Google's Eye in the Sky

This is a somewhat fine distinction that seems to have gotten lost in some we're-all-gonna-die! analysis. The ruling does not throw people in jail for making hardware or software that could be used to share copyrighted works. It does not require the developers of hardware and software to act as copyright cops.

The ruling makes this clear on page 19: "Mere knowledge of infringing potential or of actual infringing uses would not be enough here to subject a distributor to liability," and in footnote 12 on page 22: "In the absence of other evidence of intent, a court would be unable to find contributory infringement liability merely based on a failure to take affirmative steps to prevent infringement, if the device otherwise was capable of substantial noninfringing uses."

I think that lawyers will get a lot more business out of this ruling (as I commented to one copyright-law source, "you guys always win these things, don't you?"). If the use of the wrong word or phrase in an ad will be counted as "encouraging" copyright infringement, you can expect lawyers to run up plenty of billable hours.

I think they'd do that anyway, unfortunately. Recent history has shown that Hollywood will threaten or actually engage in lawsuits whether or not it has much of a case; inventors are stuck paying that tax no matter what.

This ruling, however, rejects the most sweeping claims made by the copyright cartel. It shrugs off the logic that then RIAA chief executive Hilary Rosen advocated in a Nov. 1, 1998 story in the Post: "'Diamond essentially created a machine that doesn't distinguish between the pirate songs and the legitimate songs,' Rosen says. 'Therefore in our view it exacerbates the marketplace for pirate recordings.'" (Rosen now sounds immensely more reasonable on these issues).

In short, Grokster still holds that manufacturers and programmers are innocent until proven guilty. It does outline one way in which they can be found guilty that was not clear before, but that hardly seems unfair to me -- provided that other judges can, in fact, stick to the plain English of the Court's language.

A reader who submitted a comment to my Web chat last Monday grasped this principle right away, writing: "I sure hope the P2P companies like Grokster, et. al. weren't dumb enough to actually promote the illegal uses of their products."

Before everybody tees off on me for selling out to The Man for calling this an OK ruling, let me add this: Even with a worst-case reading of the Court's language, this ruling remains far less of a threat to innovation than laws like the Digital Millennium Copyright Act that explicitly grant special privileges to copyright holders.

I'm a lot less happy with the Court's other tech-related ruling, National Cable & Telecommunications Assn. v. Brand X Internet Services. Not so much because of what that ruling does now, but for what it could open the door to.

The Post's reporting has suggested that the Federal Communications Commission will soon grant telephone companies' DSL broadband the same unregulated status. That would allow them to kick other Internet providers off those high-speed connections. And that will be a triumph of mediocrity.

Verizon's DSL is cheap, but I constantly hear of complaints about its tech support and its reliability. A colleague of mine lost his DSL entirely when Verizon inexplicably disconnected his line, then, after he squawked, was offered a slower connection at a higher price. He wound up switching to EarthLink. (For an idea of how many companies can sell you DSL, consult our most recent survey of selected Internet providers.)

This doesn't have to happen; the FCC could reaffirm its earlier decisions that telephone lines remain a regulated communications service. Unfortunately, the FCC's current leadership has given plenty of signs that it thinks that two competitors are enough. They're not.

Put it this way: Imagine how much pressure my employer might feel if its only competition was, say, the New York Times instead of newspapers ranging in size from the Rock Creek Current to the Wall Street Journal, TV stations, magazines and a universe of blogs. Well, that's the future we may have, at least until the dreams of cheap, widely deployed wireless and powerline broadband come true.

Questions? Comments? Send them to rob@twp.com.