by Anne Marie
Squeo.
Wall Street Journal. (Eastern edition).
|
The justices must decide whether
file-sharing companies such as Grokster Ltd. -- which furnish software
enabling Internet users to download music and videos from each other's
computers -- are liable for their customers' copyright violations. A main question before the court, which
appeared critical of both sides, is whether legal uses of file-sharing
software outweigh the illegal sharing of copyrighted material, which the
entertainment industry says accounts for more than 90% of the traffic over
these systems. Donald Verrilli, lead attorney for Metro-Goldwyn-Mayer
Inc.'s Metro- Goldwyn-Mayer Studios Inc. and 27 other entertainment
companies, cut to the chase in his opening sentence: "Copyright
infringement is the only significant use of Grokster." Seconds later,
Justice John Paul Stevens cut him off with a question about legitimate uses
of Grokster. For the next hour, nearly all of the justices took part in a
lively argument that showed their firm understanding of a technology that
primarily has been the domain of teenagers and college students. In this case, the percentage of illegal
use is critical. In 1984, the court ruled 5-4 that Sony Corp., maker of the
Betamax video recorder, wasn't liable for "contributory
infringement" if the video recorder had "substantial noninfringing
uses" that didn't run afoul of copyright conditions. They didn't at the
time specify what percentage would be considered "substantial,"
creating the ambiguity that exists today. Acting U.S. Solicitor General Paul
Clement, who argued on behalf of the Mr. Verrilli hammered the point that
Grokster, StreamCast Networks Inc. and others "intentionally built a
network of infringing uses and actively encouraged infringement."
Several of the justices picked up on the issue, with Sandra Day O'Connor
repeatedly returning to the idea of Grokster's "active inducement"
of others to violate copyright laws and Anthony Kennedy expressing concern about
the illegal activity providing seed capital for file-sharing companies to
fund their growth. Some of the justices indicated the need to address these
issues in a trial at the district-court level. Still, there appeared to be little
sympathy for the entertainment companies, with their long history of filing
copyright-infringement suits against individuals and companies. Justices
Antonin Scalia and Stephen Breyer questioned whether it could be detrimental
in the long run to cut off budding technologies. Justice Breyer cited the Xerox machine,
videocassette recorder and even Gutenberg's printing press as examples.
Justice Scalia went so far as to ask the entertainment-industry attorneys if
they would give the software companies 10 years "to find an acceptable
use" rather than suing them "right out of the box." High-technology companies say a decision
against Internet companies could chill investment in new products and
services at a time when the Internet, broadband and wireless devices are
radically revamping how consumers obtain and share information. A decision is
expected by June. Outside the court, the case attracted a
crowd of protesters, some carrying placards with sayings like "Save
Betamax," the legal precedent in yesterday's case. The justices heard another Internet-related
case, examining whether the Federal Communications Commission erred in
exempting the cable industry from having to share high-speed Internet
connections with rival service providers. The justices initially seemed fixed on
why the FCC adopted different rules for the same service depending on whether
it was provided by a cable or a telephone company. Still, the issue they are
being asked to review is whether the FCC should receive deference as the
expert agency that oversees communications issues. |
Thou Shalt
Not Steal
by Theodore B.
Olson
Wall Street Journal. (Eastern edition).
|
This is your lucky day. I have just
invented a system that will enable every one of you to obtain access to
virtually any and every home and automobile in the United States, as well as
millions of private bank accounts. All you need is a computer. And it is
free. I will get paid based on the advertising that pops up on your computer
screen whenever you use this service. The best part of this system is that
the more of you who use it, the more money I will make. Imagine the pleasure you will derive
from using other people's property and the things you will be able to acquire
with their money. Absolutely free of charge. No permission necessary. Of course, I must ask you to promise not
to do anything illegal with this marvelous new tool. But, don't worry, I'm
not going to do anything about it if you break your promise. In fact, I know
that most of you will be using this system for unlawful purposes. Why else
would you want it? But I can't control what you do. As long as you might use
the system for a lawful purpose, for example to access your neighbor's house
to water plants, I'm in the clear. --- Sounds pretty scary doesn't it? And, of
course, you know that I don't really have the system I've described. If I
did, I would surely be shut down in an instant. Neither our government nor
our society would tolerate a mechanism that would promote, enable and
facilitate such a massive, ongoing and uncontrollable theft of property. Well, it may be fortunate for you that
my system does not exist. But the bad news for songwriters, recording
artists, actors and filmmakers -- and the 5.5 million people who work in the
$625 billion creative and intellectual property industry -- is that the
system described above does exist today for the unlawful downloading of
copyrighted music and movies. These copyrighted products are being
stolen every day as a result of so-called peer-to-peer file sharing systems
that are available to any one of us free of charge as long as we have a
computer. They are operated by companies who make millions of dollars in
advertising revenues aimed at the systems' users. It has been estimated that
tens of millions of songs and 400,000 movies are illegally copied in this
manner every single day. Later this month, in MGM Studios v.
Grokster, the Supreme Court will consider the legality of these systems. The
companies claim that they have no responsibility for the damage they are
doing because they have willfully blinded themselves to the details of the
infringement that is taking place in their systems. Yet, according to the
record in this case, it is not seriously contested that the overwhelming use
of the systems -- over 90% -- is for unlawful copyright infringement. Indeed,
the The Framers of our Constitution believed
that private property rights are at the core of a free and prosperous
society; and that property comes in many different forms, intellectual
property as well as tangible property. In fact, the Framers considered
intellectual property rights so important to the development of our culture
and economy that they extended special protection to intellectual property
through the copyright and patent clauses of our Constitution. For over two
centuries, Congress has implemented these protections through laws designed
to provide our creative citizens with a property-based incentive to transform
their ideas into innovations and artistic works in order to stimulate
creativity and promote the progress of science and useful arts. As a result, the Grokster-type enterprises deprive our
artists, musicians and software developers of the financial incentive and
sources of capital necessary to develop original works. In the short term,
this harms the creators, the investors, and those who labor in the creative
vineyards. No one will pay for their products if they are available without
cost. In the long run, however, it will be the public and future generations
who will pay the price in the form of songs, movies and works of art that are
not created if the law allows the fruits of their efforts to be stolen. These systems also inflict immeasurable
damage to our standards and morals. By enabling millions of persons,
especially our children, to take property without paying for it, we are
sending a potent message that it is acceptable somehow to steal music if it
is done in the home with a computer rather than stuffing CDs from a store
into a backpack and walking out. That is why many organizations who represent
traditional values have joined in the effort to stop this systematic and
widespread theft -- unified by belief in the simple and ancient principle:
"Thou Shalt Not Steal." A coalition of family groups and law
enforcement organizations have also explained in friend-of-the-court briefs
that many peer-to-peer networks serve as conduits for child pornography, and
facilitate credit-card fraud and identity theft. Those are indirect but very
real and damaging by-products of the systems designed to facilitate copyright
infringement. The purveyors of these file sharing
enterprises advance the utterly absurd defense that inhibiting their unlawful
enterprise will somehow stifle innovation. Not unless stopping pickpockets
stifles magicians. The fact is that innovators must have legal protection if
they are to innovate. The best way to stifle innovation is to allow the theft
of the innovator's product. Lawful and productive creativity is severely
inhibited when cheating and theft is not controlled. The Framers' insights are not outdated
in the digital era. If anything, the advent of file-trading services confirms
the Framers' wisdom -- and underscores the continuing importance of a system
of property rights that protects and encourages creativity and innovation. --- Mr. Olson, former solicitor general,
represents the Recording Industry Association of America and the Motion
Picture Association of America, Inc., and filed a brief in the Grokster case
on behalf of Defenders of Property Rights. (See related letters: "Letters to
the Editor: Innovation and Intellectual-Property Rights" -- WSJ April 1,
2005) |
Letters to
the Editor: Innovation and Intellectual-Property Rights
Opinion section
Wall Street Journal.
(Eastern edition).
Theodore B. Olson, in a March 23 commentary, "Thou
Shalt Not Steal," makes a good case for the protection of intellectual
property. He had me right up until the end where he says, "The fact is
that innovators must have legal protection if they are to innovate."
Exactly. Going against his argument, suing software innovators out of existence
will certainly prevent the launching of groundbreaking new software ideas that
threaten the powerful status quo. Indeed, I find that risk much more plausible
than the risk that artists will cease making music because they are worried
someone might illegally hear their song.
On legal grounds, I continue to be amazed that the precedent
of the movie studios trying to prevent Sony from producing VCRs isn't
considered an exact parallel in this case. Can you imagine if the studios had
been successful in banning VCRs?
On moral grounds, most people agree that illegal downloading
of music is wrong, but the RIAA (Recording Industry Association of America)
would do far better to co-opt these new technologies to promote legal
alternatives like iTunes than to sue the folks who made iTunes possible. Make
no mistake, if there had never been a Napster, there would be no iTunes today.
We need the kids in the dorm rooms thinking up crazy ideas today if American
industry is going to have the world-beating technology of the future.
Arthur P. Steinmetz
---------
Mr. Olson's commentary is incomplete. He is correct that
copyright infringement is rampant on the Internet. Why is this happening? The
short answer is that many people, particularly younger Internet users, do not
recognize copyright infringement as being "theft." Congress has a
different sense of morality. Which is correct?
The Framers of our Constitution gave Congress the power to
grant copyrights "for a limited time," a phrase that wasn't in your
article. For at least a century, that limited time was, at most, 28 years. That
limited time for most films is now 95 years. In fact, no commercially
significant copyright has been allowed to expire in the
Are RIAA's members morally entitled to effectively perpetual
copyrights? The Framers didn't think so. I don't either. The group has led the
charge to encroach on the public intellectual domain -- to steal from all of us
by reducing our freedom to create. If Mr. Olson is going to quote the Bible, he
should remember Matthew 7:3.
Paul Eberhardt
----------
The invention of means for ready copying does not make the
principle of copyright less valid, it only moves the enforcement of copyright
from the legal toward the moral sphere. We all lock up our property, both
tangible and intellectual (or "content" in the language of the
technos), because we want to prevent theft.
In your paper's technology columns, Walter S. Mossberg and
Lee Gomes produce interesting columns, for which I suppose they expect to be
paid. I suggest that their work should be freely distributed on the Internet,
so that we wouldn't have to buy a copy of the Journal to read them. And the
paper then should find some equally competent technology writers who are also
equipped with a moral sense.
Howard Russell
--------
Twenty years ago, the Supreme Court refused to hold a
technology liable for its users' copyright infringement. The reason? That the
technology (the now-familiar VCR) was capable of a "substantial
noninfringing use." As the VCR was so capable, so probably is Grokster.
Yet Mr. Olson argues that Grokster and similar peer-to-peer technologies should
be held liable for how others use them. If that became the rule, our future
might well look different than we expect.
For example, consider this:
"Beam me up, Scotty!"
"No can do, captain. The transporter beam has been shut
down by court order. Kids have been using their home transporter machines to
zap items off store shelves. To stop the kids, a court is blocking use of the
technology altogether. You'll have to find another way to get back. Theft
cannot be tolerated, whatever the cost."
In the nonfictional world, we know there's no free lunch.
Without copyright putting some restraints on our abilities to copy, we'd lose
some of our culture -- but without some restraints on copyright, we'll lose a
lot more than we can afford.
Prof. Wendy J. Gordon
(Ms. Gordon is Liacos Scholar in Law, Boston University
School of Law, and Visiting Scholar, MIT,