Wednesday, March 02, 2005

Moglen Dissects MGM's Apocalyptic Rhetoric

The pile of amici curiae briefs in the fortcoming MGM v. Grokster case at the US Supreme Court is rising. Eben Moglen has filed his one [PDF] yesterday on behalf of the Free Software Foundation and New Yorkers for Fair Use. Moglen points out that not just p2p technology, but the future of the internet is at stake. He places the case in a historical perspective, gives a wide array of legal BitTorrent uses, and emphasizes that even if their should be regulative intervention, it should be done by the US Congress. Here are some bits of the brief in which Moglen dissects the "apocalyptic rhetoric" of MGM et al (the petitioners). It takes one to know one:
At the heart of Petitioners’ argument is an arrogant and unreasonable claim—even if made to the legislature empowered to determine such a general issue of social policy—that the Internet must be designed for the convenience of their business model, and to the extent that its design reflects other concerns, the Internet should be illegal.

Petitioners’ view of what constitutes the foundation of copyright law in the digital age is as notable for its carefully-assumed air of technical naivete as for the audacity with which it identifies their financial interest with the purpose of the entire legal regime.

Despite petitioners’ apocalyptic rhetoric, this case follows a familiar pattern in the history of copyright: incumbent rights-holders have often objected to new technologies of distribution that force innovation on the understandably reluctant monopolist.

[Petitioners] have no statutory bases for their claims, and are arguing here, as they argued below, that they don’t need any. As though this degree of overreaching were insufficient evidence of their mettle, petitioners go on to identify as the technical features of respondents’ computer networking software that establish their entitlement to relief those features that are shared by the whole recent generation of Internet protocols, embodying the future of network design. In the teeth of this Court’s clear statements extending back almost a century, without the slightest statutory justification, petitioners claimed below that they had a right to veto the technological design that organizes the majority of contemporary traffic on the global Internet. Not surprisingly, they lost, and now resume their blustering before this Court. In referring to this as a very important case, petitioners characteristically mistake selfimportance for the real thing.

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