Though it's so far failed to generate the same level of public interest and moral passion as the sad case of Terri Schiavo, the case of MGM v. Grokster being heard this morning by the Supreme Court will almost certainly be more consequential for the country and the world. At issue in the case is whether producers of copyrighted material may sue not only people who illegally copy their products over the Internet but also the software companies that make such illegal downloading possible. The software companies and their allies -- including telecommunications firms, consumer electronics makers, and others -- argue that the case is analogous to the 1984 Sony v. Universal, which pitted VCR makers against movie studios.
Sony maintained -- and the Court agreed -- that because VCRs had many legitimate uses, movie studios could not prevent their sale simply because they could be used to illegally reproduce copyrighted films. The movie studios argued that unless they prevailed, their industry would collapse. The legal and moral logic behind the position the studios maintained then -- and are maintaining today in the Grokster case along with major record labels -- is patently absurd. Virtually anything can be used illegally. If I use my kitchen knife to kill people, we would hardly hold the knife maker responsible. Companies should be held legally liable for making products that are defective and cause harm to their owners and others when used properly, not for making products that can do harm when deliberately misused by their owners. Liberals were wrong to adopt this "usable for criminal purposes" standard of liability during efforts to sue gun companies for damages related to gun crime, and the theory is even more pernicious when applied to the controversy over peer-to-peer file-transfer networks.
What's at stake here is not just the future of a few companies but the future of innovation itself, both technological and artistic. The studios once argued that if VCRs were allowed to proliferate, their industry would collapse. The studios lost the case, and of course no such thing happened. Consumers wanted the ability to acquire recordings of movies they could watch at home at a time of their choosing. Businesspeople wanted to make money. At first, the only money in this game was building and selling the VCRs themselves. But entrepreneurs invented the video-rental store to find a way to make money by meeting this consumer demand. The end result has been beneficial for everybody. The studios make more money than ever selling tapes and DVDs to the companies that rent them. The rental companies make money. Movie fans can see more films than ever, and electronics makers have developed a series of products to allow consumers to construct their own home theaters.
None of that would have happened if Universal had won its lawsuit two decades ago. But if the Court today embraces the content producers' logic, a similar chain of innovation will be shut down. Far more than just peer-to-peer software is potentially implicated in the record companies' designs. I use a program called Acquisition to download and distribute mp3 files. This program can, yes, be used for illegal purposes along with legal ones. Is my laptop to be banned, then? And from the laptop, I can put songs on my iPod. Should that be banned? I can burn the files onto CDs that play in ordinary CD players. Should those, too, be banned?
Achieving the goal of an interlocking system of distribution networks and music-playing devices that's wholly impervious to illegal copying would require the elimination of all flexibility. If I buy an album -- whether in a store or online -- I ought to be able to play it on my computer when I'm at work, on my iPod as I walk around the city, or on my CD player as I sit at home. If I get a new computer, I should be able to copy the files from my old computer to the new one. If I'm taking a trip, I should be able to take favorite tracks off different albums, put them onto one disc, and play it while I drive. None of this is possible without opening up the possibility that I will illegally transfer the songs to somebody else.
Artistic innovation, too, would be imperiled. In the era of media consolidation, it's hard for many bands to get their music played on the radio (a medium record companies also tried to shut down in its infancy) or the other places where people hear new music. A band I like, The Decemberists, has a new album out that includes a song called "16 Military Wives." Like many bands, the Decemberists hope to promote their album by getting people to watch a music video they've created to accompany the song. But with a five-minute play time and a politically charged theme (the video features American unilateralism run amok, provoking the creation of a balancing coalition that succeeds in undermining American power), it stands little chance of getting played on MTV. A low-resolution version can be streamed online, but the Decemberists wanted to make a high-resolution one available as well. High-quality video takes a long time to download, so the band is distributing it via a program called BitTorrent, which handles the technological challenges involved well. But something that can be used effectively to distribute a high-quality music video can also distribute a copyrighted movie, so the big film studios would like to shut it down.
The more conventional process of simply sharing audio files helps independent bands, too. Just as acts with the muscle of a major recording company behind them release tracks to radio stations, groups that have trouble getting airplay frequently release a few songs over the Internet. These bands want people who like their music to distribute it to their friends. The idea is that if you like a few songs, you might buy the album, while if the music were never given away for free, you'd never hear it. I recently got a couple of tracks from a band called Lesbians on Ecstasy that, according to its website, "steal[s] liberally from the lesbian back catalogue referencing artists like k.d. lang and the Indigo Girls to create booty shaking dance hits that maintain the politically infused edge of many early lesbian songwriters." They're making political music fun, in other words. And they're good. You should check it out and maybe you'll buy an album or see a live show. Without file sharing, nobody will hear them and we'll all be restricted to what a handful of record company and radio-station executives think we should be listening to.
I'm not a lawyer, but near as I can tell the content industry will probably lose its suit, and so much the better. But the risks hardly stop there. Over the past few years, copyright owners have been startlingly successful at getting new laws passed when old ones won't serve their purposes. A few years back, Congress retroactively extended the copyright for works that were created decades ago. This could in no way contribute to creating incentives for future innovation, but it will prevent an untold wealth of old material from coming to market in the public domain. Opponents of copyright abuse tried to get the courts to block the law, but judges ruled (correctly, in my view) that this was a matter for Congress to handle. And handle it Congress did. Badly. And badly is exactly how it'll continue handling it until a broader public gets involved in the debate. Otherwise, the debate will be dominated by a handful of wealthy special interests, and no amount of clever lawyering is going to save innovation from its enemies.
Matthew Yglesias is a Prospect staff writer.
