WHEREFORE THOU ART #22
The Supremes Take on P2P

A newsflash just came across my laptop that the Supreme Court has agreed to hear the Grokster case. Whatever the Court decides in this matter will probably dictate how we are going to get our music and movies in the future.

You might remember Napster, the first peer-to-peer file sharing network, on which individuals could look through each other's digital music libraries and download whatever songs they wanted via the internet. Napster debuted in 1999, by mid 2000 was the hottest thing since the Chia Pet, and shortly thereafter got sued to smithereens by virtually every corporate entity related to the music industry.

To make a long story short, one judge in California decided that everyone who used Napster, all 50 million or so of us, was committing copyright infringement. Then the judge decided Napster was also infringing because it actively operated the network through which all of this infringing traffic traveled. Because of this active network, the judge figured that Napster had, at least hypothetically, the ability to stop all this awful infringing activity (two theories of this, both untested and questionable, were that Napster could monitor the names of the music files passing through its system, and block files with titles of copyrighted recordings; the other was that Napster could analyze the soundwave patterns of the digital files and block those that resembled copyrighted sound recordings.) The judge ruled that Napster must shut down. An appeals court, after a truly shallow review, refused to overrule the first judge. Before any of these questions could get to the Supreme Court for a good airing, Napster ran out of money and went bust. (The name Napster has since been bought and sold, and now is being used as a brand name for one of the numerous sites where one can purchase "legitimate" digital recordings on the internet. In other words, the new Napster really has nothing to do with the old Napster.)

While Napster was spectacularly going down in flames, a second generation of peer-to-peer programs appeared, with names like Gnutella, KaZaa, Morpheus and Grokster. What makes these programs different than Napster is that traffic doesn't go through a central spoke where it could be monitored or controlled. These new programs form decentralized networks on their own-truly everywhere and nowhere at once. Unlike Napster, which had an ongoing participation in its users' file sharing, once these new programs are downloaded and the file trading begins, the users' relationship with the company that provided the program is over.

Of course, these new services all got sued, just like Napster. But this time the courts did not find that the software companies were infringing, because there was no possibility of the companies maintaining any sort of control over the users once the software was installed. A federal appellate court ruled earlier this year that the second-generation peer-to-peer networks were perfectly legal.

The court generally followed the Supreme Court's 1984 Sony decision. In Sony, the television and movie studios tried, and nearly succeeded, in outlawing videocassette recorders (can you imagine?). In a murky 5-4 decision, the Court in Sony reasoned that although videocassette recorders could be used to infringe the studios' copyrights, they could also be used for a lot of non-infringing purposes as well. To outlaw the technology would deprive people of the right to use the devices lawfully. In effect, the Court refused to throw out the baby with the bathwater by declining to outlaw a new technology on behalf of copyright holders, for the general good of us all.

With the adverse court decisions in the Grokster matter, the music industry realized that it wasn't going to swiftly kill the Groksters and Morpheuses like it had killed Napster. So, the industry decided to sue individuals who participated in peer-to-peer networks, college kids mostly, and the movie industry began this loathsome practice about a month ago. But meantime petitions were filed for the Grokster case to be heard by the Supreme Court, and the Supreme Court has agreed to hear it. The industry hopes to overturn Sony so that it may shut down peer-to-peer file trading at the source-by outlawing the software that makes peer-to-peer trading possible. At the very least, the industry will argue that Sony doesn't apply to file-trading over the internet because the internet is somehow different than the real world.

There are lots of good reasons to hope that the Supreme Court rules against the music industry. First of all, the reasoning of Sony is sound, and should, if anything, apply with greater force in the virtual world. The general principle doesn't change just because the technology is faster and you can't see it. Allowing copyright holders the ability to control innovative technologies will stifle vital technological innovation in the name of protecting copyrights. Think VCR. Think photocopy machines. Think tape recorders. They all facilitate infringement, but that doesn't make them evil.

Also, troubling questions about the fundamental illegality of file sharing remain. It's certainly not gospel that it's stealing. In fact, the Canadian Supreme Court, working off the same general principles as U.S. law, recently ruled that people participating in file sharing networks do not infringe anyone's copyrights. The industry's cries of doom as a result of lost sales from file sharing were recently called into question by a Harvard Business School study that showed the correlation between free digital downloads and lost record company sales was somewhere in the neighborhood of zero. This was further borne out by a recent Pew study that showed that musicians are more likely to feel that peer-to-peer file sharing is good and useful than harmful or felonious. And all this at a time when the United States Department of Justice announced that it intends to help the entertainment industries "police" their copyrights with increased criminal prosecutions of those using peer-to-peer networks. The idea of Ashcoft's gendarmes dragging kids out of dorm rooms and throwing them in a federal hoosegow for grabbing Hoobastank songs off the web should give one pause.

Finally, there are growing indications that the major labels are embracing peer-to-peer file sharing, or some close variants of it, for their own purposes. In this light, the Grokster suit looks more like the music industry is using copyright law less to kill a technology than to corner it by clearing the field.

And that is sleazy.

Like most Supreme Court decisions, the decision the Court makes in the Grokster case will have ramifications far beyond the litigants in the case and the narrow issues before the Court. When Sony was decided in 1984, no one could have foreseen that the decision would play a central role in a post-millennium case involving something called the internet. Who knows where the reasoning of the Grokster decision will go? We live in a time when more and more copyrights are being held by fewer and fewer corporations, and the trend seems to be away from public access and towards information hoarding and pay-per-peek. A decision that favors the status quo, rather than strengthened rights for copyright holders would seem prudent, if not downright democratic.

Arguments in the Grokster case will be heard in the spring with a decision expected by the end of the summer.

(c) 2004 Paul C. Rapp
This article originally appeared in The Artful Mind, and is intended to provide the reader with an awareness of copyright law and not legal advice.