Brand X and Grokster

There’s one main theme in the Brand X and Grokster Supreme Court Cases yesterday. Incumbent industries own much of US technology policy, and use that power to keep out competition and suppress change.
BrandX, the ruling that exempts cable companies from sharing their lines, is a defense of the FCC policy to offer incumbent carriers relief from competition, in exchange for unsecured promises to build out broadband. The policy is obviously failing — the US is falling behind the rest of the world in broadband access. See Cathy Yang’s Business Week commentary, “Good for Cable, Bad for America” for the case made clearly.
Grokster applies an “inducement standard” to technology products and services that can be used for copyright violations. In practice, according to EFF’s Fred Von Lohmann, this will encourage content industry lawyers to rummage through the memos and emails of technology innovators, looking for any sign that the company intends the product to be used for copyright violation.
The content companies didn’t get exactly what they wanted — the technology itself hasn’t been criminalized. But they got enough to make it riskier to develop new technology, and to push more technology innovation outside the US.
The US will either find a way around the incumbents’ ownership of the law or become a second rate economy. Empires fall.

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