Books, culture, fishing, and other games

January 28, 2004

Who Needs Them Anyway?

Reading through SANS NewsBites earlier today, I got a chuckle from one item. Chuckling is not my normal response to the security notes in that weekly newsletter. Mixed in with reports of the latest phisher scams and virus and worm outbreaks was the news that a Federal judge has ruled a lawsuit by Sharman Networks, the owner of the KaZaA peer-to-peer file sharing software, can proceed against music and movie companies. The suit alleges that those companies violated Sharman's copyright and license agreements.

The interest here is that those music and movie companies were seeking to file their own suits against KaZaA users who were using that software to, they allege, violate their copyrights on music and films. Apparently (perhaps among other things) the defendents had used KaZaA Lite to send warning messages to other users on the network, which violated the license agreement of KaZaA Lite.

As the Associated Press article points out, irony abounds. The companies in question had previously sued Sharman for copyright infringement in 2002. Their claim was that Sharman was liable for the illicit use of the software in sharing illegal, unlicensed copies of their intellectual property, though the software was also used for sharing properly licensed, legal copies. Sharman countersued on anti-trust grounds, claiming they were blocking the legal sharing of authorized copies.

How all this will shake out remains to be seen. What is clear to me is that the model for handling this intellectual property in the current evolving technological environment has some serious flaws. I am no "free information" radical, not by a long shot, but artistic expression walled off from the market is silly. To some degree it has always been so, but back in the day it was impossible to share the Mona Lisa with the world. It may be impossible to share the full impact of that piece of art universally today, but we are much closer to the point where that is possible. That change mandates other changes.

Current distribution channels for art, especially music and movies, are badly flawed. They clearly serve neither the artist nor the end consumer's best interest. They serve the interest of the middlemen. That "middlemen" is somewhat new historically. Looking back at the various golden ages, the arts had patrons and sponsors, but those were not usually middlemen. They were themselves consumers first. The birth of middlemen came with the printing press and the advent of the publisher. Books follow a slightly different trajectory, and are, perhaps, ahead of the curve slightly in some ways still. "Books" as we know them may not live much longer (sad to say), but the act of sharing words will remain, and is already handled more casually than are either the legal sharing of music or film.

When a market, both the supply and demand ends, is served as poorly as this one is, it of necessity changes. The middlemen have a vested interest in conserving the existing system. That is a losing battle. It would be wiser of them to seek to control the change themselves rather than trying to hold the status quo.

That they are battling to keep things as they are creates opportunities for others to use their own efforts against them. When they create rules to protect themselves they had better live by those rules too. In this case they quite possibly did not.

The tone of the AP article suggests Sharman has an uphill battle. If the facts are as alleged, I think Sharman as an easy case. The music and film companies can't afford to win this battle in the war to preserve their status quo because doing so will put them one step closer to eventual defeat. If they indeed violated the license agreement, as alleged, and they successfully argue they should not be liable for damages, they may well see similar judgments come their way from the other direction from users they allege have violated their copyrights and licenses. Many of those suits are already underway.

But their current business model is dying fast anyway. Those with foresight will begin looking for a way to continue to make money in delivering intellectual property to consumers, but in a manner and at a price that satisfies the market's demand. If they do not, someone else will, or the role of middleman will simply vanish (as is already happening with written words).

The market is already asking the question, "Who needs them?" Their answer to that question will determine their survival.

Posted by dan at January 28, 2004 02:35 PM | TrackBack
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