In Sony v. Does 1-40, a New York federal court upheld the right of the record industry to file "John Doe" law suits against unknown illicit file sharers and then obtain the names of the alleged violators from their ISPs. (The opinion is available on Lexis, but the Southern District does not put opinions on the Internet.)

The decision was not a surprise, since few had expected any court to rule that constitutional protection of anonymous speech encompasses a right to engage in illicit downloading, any more that one would expect a court to uphold a free speech right to shoplift from a book store. That line of argument was pretty much disposed of by the Supreme Court in Eldred (2003): "The [Copyright Term Extension Act] . . . protects authors' original expression from unrestricted exploitation. . . . . The First Amendment securely protects the freedom to make -- or decline to make -- one's own speech; it bears less heavily when speakers assert the right to make other people's speeches."

What the case really illustrates is that the "Copyleft," or "Free Culture Movement," or whatever one wants to call it, is not being straight with the public. During the Verizon litigation (see also here), when the content owners were trying to obtain names of file sharers before filing suit, the argument was that this was unconscionable and that the owners should be forced to obtain the names through John Doe law suits so that a court could pass on the merits of the allegations. Now, when John Doe law suits are brought, the reaction is: "Oh no! You should not be able to sue them at all."

Similarly, if the content owners attempt to hold the P2P providers responsible for infringement, the Copyleft says that is the wrong approach and that infringers should be sued directly. But if the infringers are sued, then it is contended that they were misled by the P2P providers and that suing them is not fair. But certainly we should not create a new cause of action that would allow the content owners to sue the P2P providers, however egregious their behavior. That would "stifle innovation."

If one asks, "Then just how are the content owners to protect themselves, and incidentally protect the public interest in a flow of creative product?" the response is a vague reference to new business models.

Let us be clear. There is a reason for this shifty approach. The goal of the Copyleft is to destroy the use of property rights and markets in the production of creative property and to substitute -- yes, let us use the dreaded "S" word -- a socialized system under which content would be distributed without cost and creators would look to the government for economic support.

In a talk I heard a couple of months ago, Larry Lessig called this assessment "intellectual McCarthyism." If that be so, then I challenge him and his ilk to explain wherein it errs. I am happy to acknowledge that the values of fostering technological progress and of avoiding unfairness to Internet users are very important, and that our system of copyright law must indeed recognize their value. But I would like some acknowledgment from the Copyleft that the values of protecting creative property and perfecting markets for its distribution also deserve respect. What I hear is silence.

posted by James DeLong @ 3:54 PM | General

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