Thinking a Bit More Clearly on Grokster and Brand X

A bit of time lends perspective. There is already a ton of stuff out there on this, but I’ll add a few perspectives that I hope are fresh. . . .

I’ll do Grokster first, because it’s quickest. On rereading my report from the oral argument and comparing it with the result, I seam to have gotten this one pretty on target. The Court declined the opportunity to re-examine Sony and remanded on the inducement theory.

I have only two things to say that haven’t been hashed out elsewhere. The first is that everyone seems to be making a big deal of the fact that this was remanded back to the district court, as if Grokster and Streamcast get a full blown trial. But this ignores the last two paragraphs of the opinion. Look carefully at the second to last paragraph, which states:

“There is substantial evidence in MGM’s favor on all elements of inducement and summary judgment in favor of Grokster and Streamcast was in error. On remand, reconsideration of MGM’s summary judgment motion will be in order.”

If I were a district court judge, I’d take that as a huge whompin’ hint to grant MGM’s summary judgment motion. Arguably, Grokster and Streamcast might submit some evidence that would get them to trial. But I am very doubtful it will get that far. I expect the district court to grant MGM’s motion for summary judgment.

Second, the split between the concurrences plays out a fundamental difference of opinion that is seen daily in Washington between those who believe in public innovation and its importance and those who don’t.

Ginsburg, fundamentally, doesn’t believe that individual people have a need to innovate or speak that would in any way impact copyright. So much so that the law should favor copyright protection above any concerns about collateral harm. In this view of the world, innovation comes from big companies and worthwhile speach is pretty much the provenance of large publishers. It is a “push” world and a very traditional world. It is no surprise that Ginsburg wrote the majority opinion in Eldred. She believes that more speech will happen if the large aggregators and distributors can get rich doing so in a linear, easily understood fashion.

By contrast, Bryer, who dissented in Eldred, clearly believes in Commons-style innovation rising from all of us. The dissenters are very concerned that too much control dooms future innovation, in no small part because it is impossible to predict how a technology will be used. Hence, Bryer focuses on the potential for technology, rather than presuming (as Ginsberg does) that the only thing people “really” want to do is steal music, since “people” are generally incapable of doing anything else.

[For Court watchers, O’Connor was one of the two judges who joined Bryer in his concurrence. I somehow doubt “what is your feeling on file sharing” is going to register in the debate over her replacement, but I am rather more interested in such opinions than I am about any justice’s opinion on Roe v. Wade.]

Moving on to Brand X , we once again see a very basic split in philosophy. And, interestingly enough, the people who “get it” with regard to copyright and the “content layer” in Grokster don’t necessarily “get it” here, and vice versa. Thus Thomas is joined by Stevens, O’Connor and Breyer (and Rhenquist and Kennedy — who never get it), while Ginsburg (and Souter) joins Scalia.

The basic philosophical difference that drives both opinions is: do you believe in end-to-end? For those just tuning in, the “end-to-end” principle is the idea that a network joining to end points is “dumb”, it makes no decisions about anything. Instead, decisions are made at the end points of the network. Thus, an end user decides what to attach, what information to send, where to send it, etc. etc. The Internet was built on this “end-to-end” principle, which contrasts with the older “smart network” design. That is to say, the network (or, more accurately, those who own and control the network) decide on what capabilities the network will support, the nature of the content, to whom you may connect, etc. etc.

If you believe in end-to-end, than you believe that a customer who buys “internet access” is primarily interested in a dumb pipe that allows him or her to send information somewhere and download it unchanged. If you don’t believe in “end-to-end,” than the purveyor of the connection decides the nature of the offering without regard to consumer preference.

Scalia (and Ginsberg and Souter) believe in end-to-end. According to Scalia, that’s why this is a “telecom service.” Because what a user wants, above all else, is the ability to send information to others and the ability to receive information from others. Thomas (and the rest of the justices) don’t get this. So they speak of buying “internet access” as if it somehow means something different from buying the ability to send information back and forth.

The problem is that it is hard to define what “internet access” is and means if it is somehow more than the ability to send information back and forth. Yes, the cable provider can and does provide many other services, but these are useless without the core ability to send information back and forth. As evidence, I will observe that Prodigy, Compuserve, and the other early leaders in online service lost their market lead to AOL when AOL offered the ability to send information back and forth freely while these other services charged a premium for it. [I shall respond to the inevitable ‘the market will keep Comcast and others from mucking with traffic by observing that this only works if you have a choice. Thanks to Brand X, I will only have a choice between the Telco provider and the Cable provider. Duopoly is not choice.]

So the majority siezes upon the most idiotic distinction imaginable. O.K., granted the FCC did too, but that was being dishonest while the Court was just dumb. Anyway, the majority somehow thinks that Comcast providing DNS look up service is of great significance to the question of whether it is an information service or a telecom service, since apparently the user is helpless without DNS look up service.

The problems with this are so painfully obvious that you wish you could reach through the pages and slap Thomas around for a few minutes. First, I don’t actually need DNS to use the internet. I can always use the IP numbers. A pain in the patootie perhaps, but feasible. Second, I can actually install my own DNS. Again, not a lot of people are going to want to do this, but there are some who actually prefer to install their own DNS, thank you very much, and the fact that Comcast doesn’t let you do this is a bug, not a feature.

But, and most important of all, even for the average user, ITS NOT LIKE COMCAST ACTUALLY GENERATES THE DNS INFORMATION OR THE PROTOCOLS THAT MAKE DNS LOOK UP HAPPEN. Comcast, like just about everyone else, relies on our splediforously-perfect-all-hail-ICANN-may-it-never-be-changed-from-the-day-The-Blessed-Postel-gave-it-
to-us-on-bloody-stone-tablets DNS system. Like everyone else, they cache some addresses, look up the rest by pointing to a root server, blah blah blah.

Worse, if the difference between information service and telecom service is bloody DNS, then what happens if the telcos ever adopt ENUM? The Majority dismisses the possibility that the phone company can evade the traditional Title II Common Carraige regime for voice by observing that “merely adding voice mail or other information services” doesn’t get you out of being telecom, but the Majority are ignorant morons here. The question isn’t whether Verizon or SBC or whoever evades Title II common carraige by adding voice mail and refusing to sell you voice without voice mail. The question is what happens when the do the fiber upgrade and say “o.k., we will only sell broadband service, but if you want, you can also buy our voice package. This voice package is also an ”information service” because it uses VOIP rather than traditional voice architecture and I refuse to sell it to you unless you buy my broadband service as well. If someone can explain to me how this differs from what cable offers, I will be very interested.

But Thomas doesn’t care. As far as he and the rest of the luddites care, the determining issue is what the network provider chooses to offer. But, as Scalia points out, the whole point of Congress creating mandatory catagories is to define things by function, not by what the provider chooses to call it.

On the plus side, I expect to see a lot more interest in unlicensed spectrum and in municipal broadband. As we reduce down to duopoly, folks are gonna start to get very anxious for alternate paths.

Stay tuned . . .