There has to be some creative way to deal with the issue of the intent to infringe raised in Grokster. Is it possible to differentiate devices like the iPod which don’t foster infringement in quite the same way as Grokster (software for trading music vs. a device for playing music)?

There has to be a creative way around Grokster…

Interesting thoughts on the factors dictating the development of the zune. The cynic in me says that MS just got cozy with Hollywood/RIAA because it was easier than providing what the consumers wanted. After all, little in MS’s history has shown that it really cares about the end consumer anyhow

Even given the change in the law, too, let’s not forget that Apple is the 800-lb gorilla (the Microsoft, if you will) in this market; the large market share of the iTunes store gives them the kind of clout vis-a-vis Hollywood that a new entrant wouldn’t wield.

Finally, as a practical matter, the industry’s lawyer took pains to reassure the Justices during oral argument in Grokster that their arguments wouldn’t make it unlawful to sell the iPod — not necessarily a concession with legally binding force (and indeed, the industry has been running away from some of its own statements in Grokster ever since), but it gives the iPod a unique status in PR terms, if nothing else, as a product officially “blessed” by the industry (and, indeed, the Court, based on Justice Souter’s questions during argument — after all, he ended up writing the opinion).

All of which is just to say that Grokster really does leave Microsoft and other new entrants in a qualitatively different position from incumbent players in this market. Would a company with more backbone than MS have found a way around Grokster? Perhaps. But Andy Ihnatko doesn’t even recognize the dispositive issue.

(a) why aren’t new iPod models similarly constrained? The new shuffle (no, that’s not a tie clip) and likely a few other current models were mostly designed post-Grokster. There have been a number of firmware updates released since the decision. Why are these not hobbled to avoid the eye of Sauronthe RIAA?

(b) for that matter, why doesn’t the danger extend to products designed before the decision. Is the iPod somehow grandfathered in since it was around before the decision?

I think it’s clear that the iPod is in just as much danger as the Zune is. Mr. Ihnatko may have left out the explicit legalities, but Apple not hobbling its product and even introducing new features shows (to me) that they believe this is a fight worth having if it comes to it. They’re not morons blithely continuing on their path. They know which way the Grokster wind blows, and are ready to stand and fight if it comes to that.

Mr. Ihnatko is right: Microsoft just doesn’t have that sort of spine. What’s important is not how people should be able to interact with media, but their own bottom line and that of the recording industry. The user is only important as a sucker to sell the product to.

Putting aside the legal issues, from a purely business perspective, it does seem as though the MSFT/Universal deal has changed the game, entirely. And it’s an almost sure bet that AAPL and the others will soon be keeping their transactional lawyers busy drafting similar, hardware-revenue-sharing arrangements with the studios and content providers.

Thanks for a great piece.

Gene from ZuneChannel.com