Posner Reply to Grokster Comments

These were stimulating comments. Several pointed out correctly that tags on software files, indicating that the file is copyrighted, can probably be removed; and this suggests that only encryption, preventing copying, is likely to be effective in protecting the intellectual property rights of the owner of the copyright. But this in turn presents the spectre of overprotection of those rights. Copyright is limited in term and, more important (given the length of the term), is limited in other ways as well, such as by the right to make one copy for personal use and, in particular, the right of "fair use," which permits a significant degree of unauthorized copying. To the extent that encryption creates an impenetrable wall to copying, it eliminates these limitations on copyright. In addition, encryption efforts generate countervailing circumvention efforts, touching off an arms race that may create more costs than benefits. When these points are combined with the undoubted fact that many millions of Americans simply do not see anything wrong with the copying of copyrighted music and film, so that legal restrictions on copying will not be reinforced by a strong moral norm, alternatives to lawsuits against direct and contributory infringers must be considered both by industry and lawmakers. Industry can reduce copying by reducing the price of the originals and by providing value added that is difficult to copy, such as attractive packaging. Congress could elide the problem by curtailing copyright protection for readily copiable work and substituting a tax on computers the proceeds of which would be distributed to the owners of copyrighted works. Several commenters wondered about the limitations of contributory or indirect liability. What about companies that manufacture guns that they know to be particularly suitable for and used in criminal activity? There is no general answer; it all depends on how specialized a particular good is to illegal activity and how serious that illegal activity is. So the sale of burglar tools provides a good example; also the fencing of stolen goods. Most guns are sold for lawful uses, and since the desired characteristics of a gun (weight, accuracy, killing power, price, reliability, speed of action, and number of rounds) are generally independent of whether the gun is to be used legally or illegally, the analogy to burglar tools may fail; but this is not a subject about which I know enough to speak with assurance.

Comments

[Michael Levy]

the desired characteristics of a gun (weight, accuracy, killing power, price, reliability, speed of action, and number of rounds) are generally independent of whether the gun is to be used legally or illegally

Other characteristics:
http://library.findlaw.com/2001/Aug/1/126093.html

In support of their case, the shooting victims pointed to evidence that the TEC-9/DC9 had no legitimate purpose because it was too inaccurate even for target shooting. The TEC-9/DC9 was designed to be fired from the shooter's hip; the barrel of the gun was threaded to accommodate silencers and flash suppressors; and Navegar advertised the assault weapon as having excellent resistance to fingerprints. Navegar's director of national sales and marketing testified that he welcomed negative news stories about the TEC-9/DC9s because "whenever anything negative has happened, sales have gone tremendously high."

I'm not sure all of those are illegitimate characteristics for a weapon desired for lawful uses, but those are the kind of characteristics those suing a gun manufacturer could cite.

[Palooka]

The characteristics of the gun are not of much importance because their is always the LEGAL use of firearms for self-defense. Effective self-defense can be accomplished by lethality of course. Pointing to lethality, then, does not seem to particularly helpful. Guns are more often than not DESIGNED to be lethal.

However, given the state of technology, there are many plausible ways of restricting the use of the firearm to only the registered user. I have read about, but I am uncertain of the current state of, technology that identifies fingerprints.

Now, given the suggestion that programmers be required to incorporate "cost-effective" measures to prevent copyright infringement, I wonder why a similar standard could not be applied to ANY other product, including the hot topic of firearms. Anybody concerned about abuses of the tort system should be very wary about judicially imposed "cost-effective" standards whatever the product may be. The Betamax case was correctly decided for this reason--it's a slippery and uncertain slope when you start down this path.

[Michael Levy]

Rather than just computers, it seems it would make more sense to tax all devices capable of playing electronic music (excluding very low-quality formats like midi).

This would mean taxing sound cards and motherboards with integrated sound, but not computers that can't play sound (servers? databases?).

In fact, the tax could even be proportional to the quality of sound the device is capable of producing.

I imagine there would be a cottage industry for DIY assembly of digital media players. Connect an embedded processor to a stick of flash memory, a battery, a microphone jack, and a USB port, and people could make their own "myPods."

This proposal could also create the perverse effect of increasing prices for the electronic audio equipment many artists use to create their music, and would end up double-taxing those of us who pay for music and music-related goods that exist to support bands (band merchandise, etc.).
---
I think all of that could be remedied:

Persons or businesses could get rebates on the music hardware fees in an amount proportional to what they spent on music-related things (CDs, concert tickets, band T-shirts, band expenses, voluntary donations to bands).
---Another problem would still exist: what scheme would we use to distribute the money raised by taxes? A scheme tied to the number of downloads of certain artists' songs would 1) require the gov't to keep track of the number of downloads and 2) invite exploitation by the use of programs that would download music without humans ever hearing it.

[michael persoon]

To Michael Levy:

Re: analogous application to firearm manufacturers

The issue is not that there is always a possible legitimate lethal use. The issue is whether or not the manufacturer is inducing and encouraging illegal use of the product.

Just as there is always a legal lethal use of a firearm (excluding certain types of fireams or certain jurisdictions regulating ownership) there is always a legal use of file sharing networks. In Grokster, the court held that unlike is Betamax, the manufacturer induced/encouraged illegal uses of their product and benefitted from that illegal use. Presumably if the same standard could be met in any industry (OTC drug manufacturer, gun manufacturer, "water pipe" (bong) manufacturer they could similarly be regualted and penalized. In the case of Navegar, the evidence could suggest that they are intentionally marketing to a criminal element and encouraging use of their product for illegal purposes.

[dude]

RE: indirect liability -- eBay is notorious for facilitating the sale of stolen goods. It makes no effort at all to stem those sales. I guess in this case there's no organization that can push eBay to do anything.

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