Given a lawsuit about a particular technology, how can we tell whether that network is more like the power grid [a physical network] or more like a social [virtual] network? Here I think the Grokster courts have gotten it right. Rather than arguing over what is a “network,” or what “network” means anyway, they looked at the nature of the technology and the defendant’s control or influence over it. . . . The MPAA, in suing the operators of BitTorrent trackers rather than trying to attack the BitTorrent protocol itself, seems to be recognizing this distinction. That in itself good news.
I think that this is right. I also think, though, that it’s worth continuing to wrestle with the meaning of “the network” (and “the protocol”) in the context of Grokster and BitTorrent and elsewhere. Neither one (network, or protocol) just sits there in the background as an objective “thing.” Its continued existence in some recognized form depends on a host of factors — individual, group, and institutional effort; one or more social practices (“file sharing”) that treat it as such; a regulatory framework that validates its existence, or refuses to. Look at the telephone network: if wireless carriers can refuse to carry allegedly offensive content, is it still the phone network? If carriers can refuse to carry video porn, can they refuse to carry other content? History and precedent governing “the phone network” says no, but if this isn’t the phone network any longer — then, well, what are the rules? Are we ready to have that discussion? Or is society still at a point where discussing “what is a phone network” still makes sense? My intuition is that the second point is the right one. So I think that there is something to be gained in the discussion of what BitTorrent (or Grokster) “is,” even while we (and the courts) talk about what amounts to misuse of those resources.