In the wake of Grokster, predictions were made: That technology would be chilled by the threat of liability, that there would be a flood of lawsuits, or alternately that the case would have little or no impact because of enforceability difficulties and the ease of maintaining more anonymous P2P networks.

Instead what seems to be happening is unlicensed P2P is closing its doors, and licensed P2P is growing. Perhaps blackmarkets aren't in the long run all that appealing to consumers; and more anonymous P2P networks aren't very attractive to developers and investors without the full force of venture capital, marketers, and credit markets behind them. That was the way I predicted it would go. But perhaps this is merely the first phase, and the next generation of unlicensed P2P will take a while to catch on.

My thesis about this whole IP problem is that lack of enforcement, the difficulty of getting enforcement except in a few token suits, is indeed a very, very difficult one that will require some sort of new institutional solutions. Solutions that take into account the global nature of the Internet, the enormous size of the communities it creates, the anonymous nature of communications over it, the relative clumsiness of after-the-fact of law-breaking enforcement and the difficulty of before-the-fact enforcement, technical or legal.

But if I am right in my initial predictions about Grokster, that the case would matter, then perhaps I am wrong about the importance of enforcement? Or perhaps enforcement difficulties will continue to drive the legal issues, but the business side will continue to be driven by factors outside the law.

I parted ways with some of my libertarian friends on some IP issues because I saw it as so difficult an issue that I no longer felt that the answer was something I could comfortably derive from first principles a priori. I've been trying to feel my way more slowly, with frequent reference to empirical reality. But this is a lot of work, and tonight I have eaten far too many truffles and far too much rare lamb.