couple of weeks ago, amid all the breathless hoopla about
feeding tubes (a fight that wasn’t remotely about Terri Schiavo
or the right to life; it was about abortion and the judiciary),
the Supreme Court entertained arguments about peer-to-peer
file sharing. P2P is the bastard son of the Napster of yesterday
(Napster I), the Napster of today (Napster II) being a corporate
brand name that signifies nothing; P2P is the technology that
allows folks to continue to get free music online. Music for
the people, man.
So, is P2P going to be declared legal? Will we be able to
go online and get free music without fear?
The answer to the first question is probably yes, sort of.
The answer to the second question is no. Absolutely not.
Getting free copyrighted music from a stranger (who doesn’t
own the rights to the music) is illegal. This was determined
while Napster I was being sued out of existence in 2000-01.
The fact that Napster ran out of money before the question
had a chance to get to the Supreme Court leaves a hypothetical
possibility that one day online “sharing” of music could be
declared legal, as it has in Canada and several European counties.
But that day hasn’t arrived. It’s illegal, and it’s likely
to stay that way.
What the Supreme Court is going to decide is whether the companies
that make P2P software available—companies like Grokster,
Morpheus, and KaZaa—should be held liable for the activities
of the people who use their software to illegally trade free
music. In other words, the case presumes that P2P file
trading is illegal; the issue is whether blame should be placed
on the companies that make P2P file trading possible.
P2P is an information technology, and history shows that every
time a new information technology comes along, somebody, somewhere,
is threatened by it, and tries to shut it down. The printing
press was heavily regulated for centuries. Piano-player rolls
caused composers and sheet-music publishers to go ballistic.
Recorded music and radio made musicians nervous, and many
initially refused to record or allow performances to be broadcast.
Tape recorders. Photocopying machines. Videocassette machines.
All of these things make information easier to move, they
all generally make life better, and they all were opposed,
vehemently, by those who stood to lose by advancing technology.
In the late ’70s, the television and movie studios went to
court to outlaw VCRs, which had just begun to appear as a
consumer item. Jack Valenti, the then-head of the Motion Picture
Association of America, famously declared, “I say to you that
the VCR is to the American film producer and the American
public as the Boston Strangler is to the woman home alone.”
And the studios damn near won. The case went to the Supreme
Court, which ruled in 1984 by a 5-4 vote, that the makers
of VCRs couldn’t be held responsible for the fact that owners
of VCRs used them to make copies of TV shows and movies. The
Court ruled that even though VCRs could be and undoubtedly
were used for infringing purposes (like taping episodes of
Adam-12 and Baa Baa Black Sheep), this was not
enough to establish liability. To outlaw an entire technology
(like the VCR) would deprive people of the lawful uses of
the technology (like making copies of your bar mitzvah or
homemade orgy video). So long as a technology had “substantial
non-infringing uses,” as the VCR undoubtedly had, the Supreme
Court ruled that the technology was harmless from liability
for the infringing uses. The baby would not be thrown out
with the bathwater.
And the same issue is before the court again. The media companies
have tried to argue that P2P is different: It’s digital, it’s
fast, and it’s out of control. They’ve argued that Grokster,
Morpheus, and the like were formed and exist solely to capitalize
on the theft of music and movies, and that these renegade
software companies should be spanked.
At the court argument, the justices seemed skeptical, and
so much as accused the studios of “crying wolf” one more time.
If P2P is outlawed, several justices asked, won’t Big Media
use the same tactics to kill the next iPod? Isn’t the desktop
computer just as complicit in file trading as the P2P program?
And most importantly, isn’t P2P capable of legal uses? And
the answer to all of these questions, of course, is “yes.”
Most commentators think the court will follow its VCR precedent
and find that Morpheus, Grokster, and the other P2P companies
are not liable for the infringements of those who use the
software. And if that happens, things will get ugly. Such
a ruling, and how it’s reported in the press, will give people
the false impression that file sharing is legal. (Think about
it: Most people in this country still believe that Iraq had
WMDs despite three presidential-commission findings to the
contrary. People believe sound bites, not facts, and certainly
not nuanced facts) The court will announce P2P programs are
legal, and the floodgates of free music trading, which has
been leveling off recently, will be open wide.
And the industry will have no choice but to release the hounds,
in the form of cadres of lawyers, to sue the bejesus out of
otherwise upstanding Americans who mistakenly believe that
the Supreme Court has granted them a license to steal. The
music and movie industry already has sued more than 10,000
people in a highly publicized effort to slow down P2P trading,
and these efforts have been somewhat successful. But all of
this will likely be washed clean with the Supreme Court’s
ruling, and all hell will break loose.
Sheesh. Good time to be a lawyer, sad to say.