Perspective: Getting real about the Grokster case

Over the next few months, the Supreme Court and--likely--Congress will resume a debate over rules that could determine whether consumers will continue to enjoy the benefits of many of the gadgets CNET covers.

The debate is specifically about what kind of legal liability--if any--technology manufacturers, financiers, Internet service providers, journalists and others should have if their actions "induce" another to commit copyright infringement.

While the case may appear to be simply about illegal file trading, its implications are far deeper.

Last year, Congress considered a bill that would have made it easy for copyright holders to sue these parties for the illegal acts of others and thereby control technological innovation by threat of litigation. The Induce bill was criticized by every sector of the technology and consumer electronics industries, as well as by financiers, technology journalists and consumer groups. After several attempts at negotiation, the parties could not agree on the proper standard for liability.

Congressional action this year will largely be shaped by what the Supreme Court does in the pending case involving Grokster, the peer-to-peer software used by millions. While the case may appear to be simply about illegal file trading, its implications are far deeper.

This case will, in part, decide whether the court's 1984 Sony decision will survive. That case found that the sale of copying technologies, like the VCR, is legal as long as there are "substantial noninfringing uses" for it. That decision led not only to an explosion of new consumer electronics products, but it also helped usher in the computer revolution, opening up a whole new vista of choices for consumers.

Big media companies like the movie studios have been fighting it ever since, despite the fact they have earned millions and millions of dollars from the sale and rental of videotapes and DVDs.

Lawmakers in the fray
Regardless of how the Supreme Court rules in the Grokster case, it is almost inevitable that Congress will try to legislate. If the big media companies lose, they will want Congress to reverse the decision. If they win, the companies will want the decision codified in law. We understand that and look forward to the debate.

When that debate arises, nonprofit public advocacy group Public Knowledge will maintain the same core principles it did last year in the many policy battles over file sharing. The first principle is that manufacturers of lawful technologies should not be punished for the wrongdoing of individuals who use those technologies.

That does not mean that we support any specific business model, particularly if that model is built on copyright infringement.

The second principle is that infringement is wrong and that current copyright laws should be enforced against infringers. That is why we have, in most cases, supported civil lawsuits by copyright holders.

The third principle is that because copyright law should benefit the public with new creativity, the file-sharing debate must also focus on viable compensation mechanisms for artists.

When you are faced only with one-sided proposals, it is hard to say anything but "no."

These principles are far from radical--indeed, they are shared by the vast majority of the many companies and nonprofit organizations with which we work.

But it is difficult for Public Knowledge, or anyone, to find the elusive "middle ground" in the file-trading tango when both sides are not willing to dance.

While we supported two alternatives to the original Induce Act, the bill's supporters did not put forth any alternatives. Nor did big media companies budge when they proposed five-year prison sentences for uploading just one copyrighted file, along with outlawing technologies that permit skipping video and DVD advertisements.

When you are faced only with one-sided proposals, it is hard to say anything but "no."

But we are in a new year and a new Congressional term. Some media companies are choosing to compete with file-trading networks, sometimes using peer-to-peer technology, and that is a development we applaud.

Public Knowledge believes that online content stores that are easy to use, reasonably priced, permit flexible uses and have large catalogs will win consumers' hearts and pocketbooks, and prove once again that technological development is better left to the marketplace.

Of course, we recognize that issues surrounding who should ultimately control technology will somehow always land in policymakers' laps. When they do, we will look forward to debating their merits and to working toward a solution in which everyone--media companies, equipment and software makers and, most of all, consumers--wins.

Biography
Gigi B. Sohn is the president and co-founder of Public Knowledge, a Washington, D.C.-based advocacy group.

More Perspectives

[infotime]

The free lunch is over

All these kids and their families are learning that there are consequences for their actions. So many think that there's nothing wrong with uploading and downloading copyrighted materials. The vast majority will never get sued or go to jail. The average fine is $149.

That's what I charge to rebuild a computer that's over-run with spyware. Yeah, all that music was free, but guess what -- you hosed your family's computer. File sharing starts users down the slippery slope of spyware to the point of no return. That's when they call me.

The copyright holders can only put up with being ripped off for so long. Let's hope this settles down before the pendulum swings their way and our freedoms are trampled. But, maybe that's fair because the music industry has been trampled for almost eight years now. Again, there are consequences to the downloader's actions.

Grokster and Kaazaa will be out of business unless someone wants to argue that both networks have "substantial noninfringing uses".

[zanxxx]

Who is ripping off who?

Of course there is widespread file sharing of copywrited materials. There is also widespread law breaking by drivers of automobiles. So we should punish/ban automobile manufacturers? P2P has a valuable contribution to make in optimizing the function of the internet by dispersing traffic bottlenecks and bandwith costs through its ability to decentrilize data distribution. Microsoft could deliver all its updates by "bit torrents" with no need for server farms and massive bandwith costs for example.
Regarding who is ripping off who- I have a check from the class action settlement that the major record companies paid for their "price fixing" in strong-arming retailers to not compete in pricing cds. That is just the tip of the iceberg in an industry that treats its "artists" like sharecroppers.
Finally, there is nothing inevitable about filesharing that leads to the proliferation of spyware onto a pc. Most pc's are riddled with it even if there has been no filesharing. It is simply a function of the sophistication and diligence of the user as to the incidence and extent of spyware infiltration onto a pc.
You imply a sense of moralism that as you "steal" with your pc it becomes corrupted as a result and fairly so. Well the same case can be made against the recording industry that has mistreated its financial base and now faces the consequences with its perceived view of consumer's massive copywrite infringment.

Ever Heard Of Beta Testing?

As with any disruptive technology (like electronic delivery of media), we've all signed on to refine the system and work out the problems for content merchants. For a relatively short time, we've had "illicit" access to media unpaid for, allowing huge corporations to debug the means of delivery, payment, and digital rights. Much progress has been made in a few short years, and soon, they'll reap new profits by selling their wares without middlemen or packaging. (We can only hope that artists will reap those benefits, too.)

Every significant new technology of the past century has progressed along the same basic line, with no hitch in the eternal souls of those who help test these new paradigms without pay. Airplanes, automobiles, radio, television, computers - and more contemporary ones still in progress, like email, messaging, web browsing, and the like - one certain thing is that people will always be subject to fraud and the need for repair, regardless of whether they paid for 'Shark's Tale' or Eminem. And we will always go along with the newest beta-test for new technologies, and no company will ever suffer for our free assistance in the long run.

Why Grokster should win

In my opinion the attitude of the giant corporations to Grokster-style file sharing operations not only runs counter to everyone's inalienable right to the quiet enjoyment of personal liberty, it is bad for business as well.

It's often seen that free give-aways are used to great effect to help launch a new product. For new software or music, easy and free access to it is an absolute essential for success. So why on earth is Big Brother so hell bent on preventing potential purchasers from 'trying before buying'?

I think its all due to the corporate mind-set that regards the statistics of files downloaded as so much lost revenue. In my opinion, that kind of thinking is seriously flawed. Where's the evidence to back it up?

Lighten up, you guys! What kind of a world do you want? A world where you can only find out about a new song in a magazine? A world where, in the interests of copyright, music can only be played back in encrypted form, to be unscrambled by a surgical brain implant - provided you keep up with the licence subscriptions?

Another why Grokster should win

So there you are, minding your own business, doing your own thing when suddenly, your ears are assailed by a catchy tune on some nearby radio or whatever. You then find you can't get the tune out of your head; it has done genuine harm to your peace of mind. Who are you going to call? Ghost Busters? No. Do you think you could sue for damages from the radio station? I don't think so. How about the music producers then? Nope. What about the artist involved? Some hope.

Why can't you sue? because the music you heard was in the public domain. Why was it in the public domain? because that's the way the music industry does business. It gets the new music out there so we can get hooked on it and then (they wish) make us go buy it.

Well, they can't have it both ways. Either they should keep their copyrighted stuff out of the public domain altogether and sell their wares direct to the paying consumer, or they should acknowledge the fact that this is a free society. It is the easygoing rules of a free society that allows them to peddle their melodies without risk of litigation in the first place.

Where will they stop??

Networks, including P2P networks, have so many diverse uses. How can they be taken away from us just because they can be used to do something illegal?
The same is true for VCRs, DVRs, every piece of network cable, PCs themselves, phones, cars, ...