P2P File Sharing: Do the Justices "get it"?

Now, as referenced in our Blog Description on the right sidebar, ARC:Brian is the Technology guru. However, due to a harddrive crash on my work PC, I have some time to comment on this... Brian won't be available to comment on this until this evening, but I'm sure he'll have plenty to offer.

The US Supreme Court is scheduled to hear a case involving file sharing technologies and specifically whether the software developers who created the application should be held liable for the fact that many users out there are using their app to download copyrighted music. Here's the coverage from the AP:

Court Case Could Rewrite Copyright Rules
Tue Mar 29, 2:08 AM ET
By TED BRIDIS, AP Technology Writer

WASHINGTON - When the Supreme Court justices were growing up, swapping music meant exchanging vinyl records. And sharing a movie involved walking someone to the cinema.

Today many of the latest hit songs and movies are a few mouse clicks away on the Internet, and those same justices are being asked to settle a multibillion-dollar dispute about how such items are shared.

Entertainment companies want the court to let them sue the manufacturers of file-sharing software that allows computer users to download music and movies from each other's computers. The companies say such downloads violate copyright protections and amount to stealing.

Lower courts have sided with the software makers, Grokster Inc. and StreamCast Networks, which say their technology should be looked at no differently than a videocassette recorder.

The Supreme Court hears arguments Tuesday and will issue a decision before July.

How the justices rule could redefine how consumers can watch television shows and films and listen to songs that increasingly are delivered in digital formats. Supporters of file-sharing technology say a ruling against the software companies could effectively give the entertainment industry a legal veto over up-and-coming gadgets; they fear the threat of expensive lawsuits could hamper development of new devices.

The case has star power on both sides.

Don Henley, Sheryl Crow, the Dixie Chicks and other musicians are backing the major recording labels, saying their livelihoods are threatened if millions of people can obtain their songs for nothing.

About 20 independent recording artists, including musician and producer Brian Eno, rockers Heart and rapper-activist Chuck D, support the file-sharing technology. They say it allows greater distribution of their music and limits the power of huge record companies.

Regardless of the outcome, it still won't be legal to download copyrighted materials over the Internet without permission, though tens of millions of computer users do so each day. And any ruling won't affect thousands of copyright lawsuits filed individually against Internet users caught sharing music and movies online.

But a victory for the entertainment companies would allow lawsuits that could drive companies that make file-sharing software out of business. It also would effectively overturn rules that have governed technology companies for more than two decades: Manufacturers can't be sued for copyright violations committed by customers using their products illegally.

Now, I hate to say this, but I am convinced that no one on the USSC understands what the @#$ they're talking about with regard to this matter. I have a feeling that they will side with the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA)... and impose limitations on the software developers. Unfortunately, this will have little effect other than to drive developers out of the country. If I were Grokster, Limewire or WinMX, I'd be setting up offices right now in some other country which doesn't have extradition agreements with the US government.

The entire problem that the "industry" status-quo idjits have is that their old forms of distribution which have massive costs are being replaced by more efficient means with little or no costs and which are one-to-one (or peer-to-peer). Being able to sue the software development companies that create this software is akin to suing gun manufacturers for deaths caused by handguns - and most of us agree that that's an idiotic proposal.

What I'm really concerned about is the fact that these file sharing programs are used not just for sharing copyrighted material, but also non-copyrighted or Open Source/GPL materials. Heck, just five minutes ago, I used BitTorrent (which rocks, btw) to download a free version of Linux (Knoppix) in order to see if I could recover files from my harddrive (not successful). If you'd like more info on BitTorrent, which is totally different than the Groksters and Napsters of the world (and shows how the government will have difficulty enforcing any ruling), read this Wired Magazine article.

If the Supreme Court looks at this case narrowly and does not take into account limitations on their ability to control this phenomenon, the ability of the software to be used for non-malicious sharing, etc, they'll end up driving this technology off-shore and limit the free distribution of information (in the form of entertainment).

BTW, this isn't about the artists not getting their jack... it's about Sony Corp and the middlemen not getting their slice of the pie. Since they're costly and inefficient distribution system is no longer required, this shouldn't be surprising. When the automobile came out, did the buggy whip manufacturers lose market share? Yes. What Sony, the RIAA, and the MPAA need to do is figure out how to USE this technology to their advantage. If it's easier to download a movie for a small fee than to spend hours trying to find a pirated copy, then most consumers will opt for the former. MovieLink, Napster, and iTunes, etc are all good examples of this.

BTW, Kudos to Brian Eno, Heart, and Chuck D.

***UPDATE - 5.15 pm CST***
This report from the AP hints that the USSC is troubled by the ability to pirate, but also concerned about stifling innovation. Thus, it's my prediction (first suggested by ARC:Brian) that the USSC will "split the baby" and force these software developers to include code which tracks/reports any download that appears to violate copyright laws. Again... if I'm grokster... I'm setting up shop overseas.

During a lively argument, justices wondered aloud whether such lawsuits might have discouraged past inventions like copy machines, videocassette recorders and iPod portable music players - all of which can be used to make illegal duplications of copyrighted documents, movies and songs.

Justice Stephen G. Breyer said the same software that can be used to steal copyrighted materials offered at least conceptually "some really excellent uses" that are legal.

Justice Antonin Scalia maintained that a ruling for entertainment companies could mean that if "I'm a new inventor, I'm going to get sued right away."

While seeming leery of allowing lawsuits, the court also appeared deeply troubled by efforts of the companies that manufacture so-called file-sharing software to encourage Internet piracy and profit from it.

Justice Anthony M. Kennedy pressed a software lawyer on the question of whether profits from trafficking in stolen property can rightfully be used to help finance a young technology business. "That seems wrong to me," he said.

Justice Kennedy - There's a lot that I find wrong with your recent opinions (see Roper), so let's not continue to rule based on what you feel is "wrong".... Let's rule on the practical aspects of the law. Is the handgun manufacturer responsible for deaths caused by handguns? (I'm afraid of what his answer will be....)

***UPDATE 2 - 5.30 CST***
Michelle Malkin talks about the more disgusting capabilities of P2P, specifically the ability to distribute illegal pornography. Now, I think this stuff should continue to be illegal and the Feds should hunt these guys down and lock them up so they can get all that they deserve. But, Peer to Peer, like any other technology, is not good or evil itself - it's value neutral. It is humans (and these sickos) who abuse technology for nefarious purposes. Instead of decrying the technology (and all of us moving to Lancaster, PA), we should be focusing our criticism and disdain on our fellow humans.

***UPDATE 3 - 8.30 CST***
Fellow St Louisan, Brian J Noggle, agrees with me that Michelle may be overly critical of P2P technology (although I think she's probably just highlighting the problem and not urging us all to become Luddites).

***UPDATE 4 - 10.05 AM, 3/30***
Good Richard's Almanac pokes fun at the USSC.

The supreme court was embroiled in heated discussion today over whether or not to outlaw trucks manufactured by the widely known Troksger motor company.

The issue at hand was the wide use of Troksger trucks to transport stolen and other illegal goods throughout the U.S. Justices argued whether allowing companies to sue Troksger would hinder insterstate commerce by making it exceedingly costly to manufacture transportation vehicles in the U.S.

heh

Your Co-Conspirator,
ARC: St Wendeler