Forget Grokster

According to a new study conducted at the University of New South Wales in Australia, people who are feeling crappy remember things much better than happy people do. As ever with this sort of research, it's more fun to imagine the test scenarios than it is to think about what the results mean. Researchers put subjects into "happy" and "sad" states, then asked them to observe and report on events like watching a purse getting snatched.

How do you make a test subject sad? Insults? Footage of baby seals getting clubbed? News about Australia's adoption of U.S. copyright laws? Liz Phair's last album? I just love the idea of a researcher subjecting someone to sad news and then barking, "OK, watch this purse-snatching and tell me what you see!"

Joseph Forgas, a psychology professor who worked on the study, said in a statement, "The finding makes sense in evolutionary terms. Animals that are wary of their environment are more likely to perceive threats to their survival." So when you feel like shit, you pay more attention. When you're happy, you're too distracted by pleasure to care about what's going on around you.

I think this explains a lot about how much I remember about last week. What happened to me on Thursday? I'm just not sure. But I can tell you one thing: Two small companies that make peer-to-peer networking software won a lawsuit against the entertainment-industrial complex!

The case, often called MGM v. Grokster for short (although it was several entertainment companies against Grokster and StreamCast, which makes Morpheus), resulted in a unanimous decision from three judges in the Ninth Circuit appeals court. Lead counsel for the defense was Fred von Lohmann, a staff attorney at the Electronic Frontier Foundation (caveat: the EFF is my employer too). The decision said companies that manufacture P2P software cannot be held liable for the copyright infringements of their users. For P2P addicts, the ruling sounds like a legal blessing on their song sharing. But it's more complicated than that.

Here's the bad news: Sharing copyrighted songs on P2P networks is still illegal, and if you do it, there's a chance the Recording Industry Association of America will force you to pay thousands of dollars. (Certain disruptive elements would say that means you should just encrypt your P2P traffic.) What the ruling actually said was P2P software makers can't be tried for contributory or vicarious infringement when users share copies of Metallica's latest.

The ruling will make it much more difficult for entertainment companies to use copyright law to keep software makers from creating products that allow people to share media. What these companies would like to do is control content and its means of distribution. If the decision had gone differently, P2P software would have been endangered. Content owners would have gotten a ruling allowing them to sue the companies whose software makes it possible for infringers to conduct their allegedly nefarious deeds.

A similar lawsuit – also lost – was brought by entertainment companies against Sony in 1984. The case was an attempt to stop Sony from manufacturing its Betamax videocassette recorders. After all, videocassette recorders cause piracy! Just like P2P networks do! Silly logic like this has led many commentators to call the Grokster case an updated version of the Betamax one.

What's important to remember – no matter how happy and distracted you are by this excellent win – is that we're still a long way from a situation in which it's perfectly legal for people to share music on P2P networks. For that to happen, entertainment companies would have to band together and create a collective licensing process for P2P networks akin to the one they offer radio stations. With collective licensing, Grokster could pay a set fee for the "broadcast" of music over P2P and be done with it.

Keeping P2P networks free of liability for infringement is a good first step in this direction. Now entertainment companies will have to back off from their position that P2P is a hotbed of naughtiness. Sure, they'll probably appeal this case up to the Supreme Court, but I'm betting the justices probably haven't forgotten the Betamax case any more than the judges in the Ninth Circuit have.

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