The Supreme Court heard oral arguments on March 29, 2005 for
MGM v.
Grokster, the landmark case which will broadly effect copyright law
for a
generation, and the future of American technological innovation. (and
also how
law abiding Americans rightfully steal their music)
Napster
was shut down in 2001 in a comparable case,
Aimster, the
file sharing service which used AOL’s Instant Messenger, went down in
flames in
2003, even though they brilliantly changed their name to Madster. But
Grokster is not an ordinary file sharing service, Grokster is KING of
the ‘Sters’,
ruling widely with it’s sub-minions the mighty Morpheus and elegant
Streamcast.
Grokster has won a string of legal victories; first in Los Angles
District
Court, (April 2003) and then in the Federal 9th Circuit Court of
Appeals which
concluded that ever since the player piano, every new method of
duplicating
sound results in a lawsuit. In this case “the defendants are not
liable for
contributory and vicarious copyright infringement…” (August 2004) This means that Grokster is not responsible for
what
people do with it’s software.
Grokster is a family owned business, (I think the Mafia is also family owned) which uses peer-to-peer technology licensed by Fastrack which
is similar but not congruent to Napster. It enables web surfers to
search folders on each others computers over the Internet and copy the
files they want directly to their own computers. College kids used Napster
to trade music files with each other, and the craze spread throughout
the entire world until Napster lost in court for helping teenagers loot
the music industry of every song since Benny Goodman. How many of
those they actually would have paid for, is questionable. “Hey listen to
this one, from “The Good, The Bad and The Ugly!”
The difference in Grokster is that it doesn’t have a centralized
network like Napster which indexed all the illegal downloads, and facilitated
chat lines and transactions through it’s central server. Grokster hears
no evil, sees no evil, does no evil. (Their lawyers can prove it.)
Whatever people do with it’s file sharing software is strictly up to them,
like email. Can Microsoft be sued because a terrorist sends an email
planning to kill thousands, even if they attached an old Cat Stevens
tune along with it? Grokster asserts its software is used for many legal
uses, like sharing original recipes for chocolate cake, and “the Bible, the Koran,
and the Communist Manifesto.” (Some modern versions of the Bible are
actually copyright protected.)
“Your honor, this MP3 service did knowingly allow it’s members to
transmit our New International Funk Jam version of the prophet Isaiah and we
want them PUNISHED!”
Where Would We Be Without Blockbuster?
The lower courts relied heavily on the 1984 Supreme Court decision Sony v. Universal Studios. Sony was sued by Universal because it’s new invention, the Betamax video cassette tape recorder, was used to record TV shows. (omg!) Universal told the world that “the VCR was to copyright as the Boston Strangler is to a woman alone at home” and predicted that it would be “the death of copyright.” (Run for your lives!!!) Radio was also supposed to be the death of copyright because it gave away music over the airwaves.
The narrow 5-4 majority was about to kill the VCR forever until Sandra O’Connor had a sudden mood change at the last minute. The Court then established that the technology inventor is not responsible for illegal uses of it’s product as long as there are credible legal uses. It also ruled that recording a TV show for the purpose of watching it later (time shifting) was ‘fair use’, except if you skip the commercials. This ruling has preserved innovation, and created the video rental empire which the movie industry would have lost had they gotten their way.
Supreme Interpretation
From a brief look at the bloggers who covered the case, below are few
impressions I distilled from the comments of the Justices and Lawyers.
Justice Rehnquist: Voted with Universal against Sony in 1984,
and
asked a few clarifying questions but had to leave many times with the
help of an
aid.
MGM: -He’s a beautiful man, we wish him the best of health through the
end of this case.
Justice O’Connor: She wanted to know exactly what
“rule” the
entertainment industry wanted to propose which would determine whether
or not
the inventors of a technology should be held liable for it’s users
activities.
For example, “Active Inducement?”
MGM: “I don’t know Madam swing voter, how about, ‘They’re
not allowed
to steal our stuff? Is that a good rule?”
Justice Scalia: Questioned whether an innovator of a new product
could
know if he would be sued “out of the box” for a new
invention. He said,
that if ”I’m a new inventor, I’m going to get sued right away…” He
referred
to the company as “Grokster, whatever this outfit is called.”
MGM: “Yeah, Grokster, Theftster, Stealster, whatever.
Thieves
use it to steal 2.6 billion songs, movies and other digital files each
month.
90% of all file sharing is illegal!”
Justice Stevens: Pointed out that if 10% of Grokster file
transfers
were legal, that would mean there are millions of legitimate uses every
day.
MGM: ” But …?”
Justice Souter: By their logic, wondered why they weren’t suing
Apple
for the iPod. (The top iPod can hold 15,000 songs, few people believe
kids are filling them by paying $.99 a song on iTunes.)
MGM: Lawyer Donald Verrilli Jr.,
said that “most iPod buyers are honest
consumers who pay for their digital music…”
Justice Souter: “Uh huh.”
Justice Breyer: Wanted to know if the ruling they
were seeking would have discouraged the inventors of other technologies
that can also be used to
infringe on copyright protected material such as the Xerox machine, the
VCR, Apple’s iPod” and, for that matter, the Gutenberg
press?”
MGM: -holding head in hand, watched the ground
Justice Thomas: Never asks questions in court, didn’t ask any at
this
hearing.
MGM: -best opinion so far.
As Grokster began parading out of court with a 500 mile high stack of
CD’s and DVD’s:
Justice Ginsburg: Became annoyed by Grokster’s lawyer, Mr.
Taranto,
when he suggested that the Sony Ruling …has protected innovation,
…settled
the issue and …should not be altered. Bada boom, bada bing, you may
step down.
Justice Ginsburg: Retorted that the Sony rule was really
not
all that clear.
MGM: -lifted head ever so slightly from a pool of tissues, snot and
despair
Justice Kennedy: Remarked that profiting from illegal activity
as a
way to get start up money for a new business “just seems wrong to
me”
MGM: -slightly raised eyebrows on an otherwise blank stare
Justice Kennedy: Also discouraged that the entertainment
industry did
not propose a test to decide when a neutral technology was liable for
copyright
infringement.
MGM: Mumbling to self, “You don’t like the ‘if you help
people steal
our stuff it’s wrong’ test?”
The chief executive for Sony BMG Music Entertainment, Andrew Lack,
summarized with a witty original assessment of Grokster, which he said,
”doesn’t pass the smell test with a lot of the justices.” (Except maybe
for the justices that ruled on any of his cases.)
Conclusion:
Even though Grokster’s “I’m not actually there when the thefts take
place” defense is transparently self serving, it’s evident that the
Justices are considering the broad implications that their ruling will have
on future technological development and America’s ability to innovate in
a highly competitive world economy. Many inventions of the past that
could duplicate copyrighted material are now an integral part of our
high tech society. For example, your web browser made a copy of this
copyrighted web page, and placed it in your Temporary Internet Files folder
on your computer. But I’m waiting for the Supreme Court ruling on this
case, expected in June, before taking any action.
Rick writes a humor column called,
“Don’t Laugh It Could Happen To You” for
http://sandiego.merchantamerica.com
