Absolutely nothing, say it again. That overstates—probably—but I think that there is more to that statement than meets the eye. Doug Lichtman addressed Google Print this morning, which raises interesting and contested copyright issues focusing on fair use. Google Print is one approach to bringing content online.
I want to focus instead on two different contexts in which we bring work online: public domain works and shared photographs. Project Gutenberg is probably the leading example of distribution of public domain works, though Yahoo announced this week that it will work with the Open Content Alliance to bring public domain works online. Photographs are shared on a variety of websites, flickr and Photobucket are two well-known sharing sites.
Here is the question that I am interested in: what content should be distributed on a peer-to-peer basis and why?
For-profit copyrighted content is a bad candidate, as we do not have a payment structure or sufficiently effective digital rights management (DRM) systems to make compensated peer-to-peer distribution work. We may get there—mashboxx, a Grokster successor, recently struck a deal with Sony—but we are not there yet.
At the end of its last term, the Supreme Court released its opinion in Grokster. The copyright world was hoping for a new sense of the Court’s 1984 opinion in the Sony Betamax case, which announced a new standard for third-party copyright liability. In that case, the Court imported from patent law a test providing that Sony wouldn’t be liable for third-party infringement so long as the VCR was capable of substantial noninfringing uses.
The emergence of peer-to-peer music distribution in the form of Napster, Aimster, Grokster and others put pressure in the legal system on Sony, and we ended up with a disagreement in the courts of appeal as to exactly how Sony should apply.
The Court’s June, 2005 opinion in Grokster avoided addressing Sony head on. In a 9-0 decision, the Court found that inducing copyright violations was another basis for third-party copyright liability and strongly suggested that there was good evidence of inducement in the Grokster case itself. As to Sony, we ended up with a 3-3-3 split. Justice Souter (the author of the 9-0 inducement opinion), joined by Justices Scalia and Thomas, made clear that the Ninth Circuit had misapplied Sony in its Grokster decision, but offered no guidance on how the substantial noninfringing use test should apply to peer-to-peer distribution of music.
Justice Ginsburg, joined by the Chief Justice and Justice Kennedy, made clear that she thought that Grokster was clearly on the wrong side of the line under the Sony test. And Justice Breyer, joined by Justices O’Connor and Stevens, was sure that Grokster passed Sony’s test and should not have faced liability under Sony.
I have argued elsewhere in a forthcoming paper that I don’t think that the courts have understood how to apply Sony in an online context, and I don’t think that the Supreme Court did any better. But that isn’t my issue here. Instead, I want to focus on how we think that we should use peer-to-peer distribution.
In his opinion in Grokster, Justice Breyer catalogued a variety of good uses of p2p, including distribution of public domain works, with a specific reference to Project Gutenberg, and digital photo sharing.
These seem like good contexts for p2p distribution. We don’t face the fee collection issues that we do for music and movies, and the fact that the economic infrastructure for dollar collection has lagged the technical capabilities for sharing digital files shouldn’t matter.
But the great irony is this: even for public domain works and photographs, centralized distribution seems to be the order of the day. And if we wanted to flag the key general trend in computing, that trend is movement away from the desktop towards the network, with more centralized processing, storage and distribution.
So Project Gutenberg is a centralized repository system. Yes, they are delighted to have the works distributed p2p, but the core system is centralized and mirrored throughout the globe. Presumably Google Print will be centralized—Google the good (“don’t be evil” is a company motto) is the great force in pushing away from the desktop to the network—as will Yahoo’s public domain efforts. On flickr and Photobucket, you upload pictures to centralized servers and then shares those with your friend (or the world). This could be done p2p—PixVillage has software to do this—but that doesn’t seem to be what we are doing now.
So if not here—public domain works and shared photographs, both outside of the fee copyright domain—where?