In 5-8 years, I think the Grokster problem will be solved by a combination of: 1. business model changes by legacy media; 2. changes in demographics because the fact is there will be a critical mass of users who have grown up with digital models in the heads (who are now young enough not to be of voting age but soon will be); and 3. where enough activity online is about people sharing and trading their own stuff (user generated media). It will be little media makers, supplying their own demands, who will solve this legal problem, first. Legacy media will follow behind them. All those legacy media companies, in order to continue to be as relevant to the masses as they have been in the recent past will have to come to the party and play in order to keep their stuff in front of our eyes. That is, the digital media party online, where they find that in order to participate, they have to give up some control of their copyrighted works, and rethink their models to include things like giving away some media in order to make money in some other place.
Laws are supposed to reflect social norms, attempt to create some fair play between different interests, and reflect our values. As the population changes, the social norms will change, as more of us have frameworks in our heads that include digital online realities, reducing the percentage of the population that thinks the internet is about static web pages and email.
Monday night, all the backchannels were alight with people who work on stuff online, talking about what to do, what they might have to change in their services. We all have to change things a bit to make sure we don't get into trouble the way Grokster did. Even if we are only building for users who make their own stuff and share it, and there is no legacy media at all to be used in our sites. It's still a worry and everyone is having to think about how these services are constructed and used.
Chatting with Jason Schultz and Joe Hall yesterday at Where 2.0, we noted that vlogging is a gateway drug to all sorts of things, including technically, infringement.. and the Grokster loss won't stop it. People are creative, and they want to remix and reuse, and they will. But if they remix each other's stuff, for non-commercial uses, even if it is technically under copyright, they'll learn soon enough that analog copyright as we've known it the past 100 years isn't going to work in the digital age.
So there is the Seuter question: how much do you have to have going on, to have a problem? Well. If Microsoft wants to kill you, they can win even if they lose. In other words, they can sue you, and shut you down, even if they are wrong.
Tom Abate made the analogy to King Canute, a Dane who invaded England for a year in 1013 or so, who ordered the ocean to turn back, which of course, it didn't. The RIAA, MPAA, the Supreme Court, aren't going to change the digital media tide. People are using digital media in certain ways and it's only a matter of time before there is a critical mass that will simply change the social norms, and the law and business models will follow.
Robert Cringly predicted the further granular division of Grokster services in his column today: