K: Kirsty Wark, Presenter, Newsnight
G:Geoff Taylor, General Counsel, British Phonographic Industry
I:Ian Clarke, Freenet
K: I’m joined from Edinburgh by Ian Clarke who is founder, coordinator and creator of Freenet, And Chris Taylor who is a lawyer for the British Phonographic Industry. Ian Clarke, first of all, what do you think will be the impact of today’s judgement?
I: Well, I think this judgement is a loss for innovators and the public and a hollow victory for the entertainment industry. The only real winners here will be lawyers who stand to make a lot of money over the legal uncertainly that has been created by this ruling. It’s far from clear cut. This ruling did not rule against Grokster the peer-to-peer network because of what Grokster’s technology did; the ruling went against Grokster because of how Grokster tried to promote their technology and internal communications within the company about Grokster’s business plan.
K: Right, let me bring in Geoff Taylor here. Isn’t it incredibly luddite, and indeed myopic, actually a technological advance can only help you, drive you forward. It creates new platforms, I mean look at iTunes, it creates new waves of stealing music. This is all for the good.
Absolutely, and we’re tremendously supportive of all of these technological such as iTunes…
K: Well clearly not.
G: … such as Napster, and in fact peer-to-peer. The problem is not the technology of peer-to-peer the problem is the way it is being used by companies such as Grokster and Streamcast for encouraging people to break the law by stealing music. They’re profiting from people stealing music, and what this has established beyond all doubt is that it is illegal for them to do so.
K: You’re encouraging people to break the law, Ian Clarke.
I: This has certainly not established that beyond all doubt at all. This case will now go back to the District Court of Appeals, where it will go to trial. What this has actually done is created significant legal uncertainty where there was none before. This decision rests upon the intent of the creators of new technology and legislating, I’m sorry, litigating intent is an extremely expensive business and it’s going to make it very difficult for an innovator who is just starting up to know whether or not he will be liable to get sued and that will have a chilling effect on new technologies.
K: But isn’t it just like charging a drug company for [an] overdose?
G: No, I don’t think it is at all. I think that analogy might work if drug companies were encouraging people to take overdoses, which I don’t believe is generally the case. Here we had companies who built a business around encouraging individuals to upload and download copyrighteded material against the law and then were profiting from that and what the Supreme Court has done is that it has made it clear that it is illegal and that companies that build a business in that way are responsible for what they do.
K: It is a version of stealing through Ian Clarke, isn’t it?
I: Well, I would dispute whether copyright infringement is stealing. Stealing is when you take someone’s property, if you deny them of, for example, a car…
K: ..You are infringing copyright here, you are doing that.
I: I am not, but the users of this software are, many of those users are, about 90% of them. The issue is not so much what the users are doing, they can and are being sued. The issue is whether the creator of the technology can be sued if people misuse their technology. If we were to ban every technology that is capable of misuse, we’d be living in the stone age.
K: Isn’t that the case that you have to have innovation and that innovation is often in the first instance, illegal.
G: Well, I think what is mistaken in Ian’s comments is suggesting in some way this judgement will deter innovation. Just the contrary, it’s going to take us onto the next step of the evolution peer-to-peer.
K: Well it might take it onto the next step, it might take it onto the next step of an extrordinary programme to stop any kind of detection, and that in itself could be very subversive because presumably the problem with that is that paedophiles and other ne’er-do-wells can use this technology. So on the one hand you’re saying this is fantastic, it could have a drive on technology but in fact it could have a deliterious effect.
G: There are always going to be people who are going to try to design software for the purposes of copyright infringement. What the court has done here is that it has said that you can’t do that. It has also referred to the fact that, from a previous judgement, that if a company tries to use something like encryption so that they actually don’t know, they design their systems so that they don’t know what is going on on their network, that in itself will make it illegal.
K: Ian Clarke, as an innovator, are we going, is someone already working on three steps ahead?
I: Well firstly, that is not what this judgement says. This judgement quite specifically says that if a creator of technology does not take steps to prevent infringement, that does not in itself does not fall foul of this judgement, so I would dispute that to begin with.
K: Thank you both.