The Most Prescient Grokster Brief (pPod)

This is a first in a series of posts focused on the previously discussed concept of the "pPod", or Policy Pod -- a massively converged, multi-purpose device that, at the very least, symbolically represents where both technology and policy are headed in coming years.

It's becoming increasingly apparent to the wireless carriers that they will soon be major players in the business of distributing entertainment content.  The early, shocking revenues garnered from ringtones clearly accelerated this thinking.

And, while their heads were not completely around content policy issues as recently as last summer, the mobile industry is used to the business of regulation and policymaking and quickly began formulating its positions.

One major forcing function was the Grokster Supreme Court case.  The mobile phone industry's trade and lobbying group CTIA quietly filed a Grokster amicus brief in support of Grokster, et al. Other telecom heavyweights including USTA, AT&T, Bell South, SBC, MCI, and Verizon, joined CTIA. (You can download the brief here).  Surprisingly, this brief received little mainstream media or blog attention.  It's also notable that the amici could have filed a brief in support of neither party (like the Digital Media Association), but decided to take the stronger stand.

To us, this brief spotlights some neon writing on the wall:   Two of the biggest, most powerful industries (telecom and entertainment) -- both who are used to and expect to get their way in policy circles are about to enter into a long, protracted cold war over who has the upper hand:  The distributors or the creators? 

During this cold war, there will be many treaties (deals) with each other along the way; considerable nods to the great power and accomplishments of the other; and, even perhaps an eventual unified approach to dealing with the common enemy of revenue-damaging piracy (via DRM and/or focused legislation).  However, when you get two super powers in the same room trying to get more pieces of the same pie, it's inevitable that territories will be marked and back-room battles fought.

Indeed, the CTIA amicus brief offers an olive branch while it draws a significant line that will mark likely future legislative battles:

The bright-line rule adopted in Sony Corp. v. Universal City Studios has stood the test of time and allowed the United States to pioneer innovation in communications and Internet technologies. Internet amici have invested billions of dollars in reliance upon that bright-line rule. The surest way to depress capital investment in new Internet technologies, such as wireless data services, on-demand video, and “seamless mobility”—the transmission of content from television, to computer, to cell phone, to new devices yet to be created or marketed—is to modify Sony by adopting any of the malleable, multi-factored tests proffered by petitioners and their amici….

…Only Congress has the constitutional mandate and institutional capacity to address peer-to-peer technology in a way that promotes the good and punishes the bad. Internet amici stand ready to work with copyright owners and the content community to arrive at a comprehensive legislative solution to this problem.

An excerpt from a RCR Wireless piece on the brief:

``Our joining this effort can be viewed as the wireless industry's coming of age as a broadband service provider. When Verizon received the (RIAA) subpoenas, we were not in this sphere. Now national carriers have either deployed or announced plans for national deployment of broadband,'' said Michael Altschul, CTIA senior vice president and general counsel.

More on this soon....

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