The benefits of mutual distrust

The thorniest rulings--those that divide the court down the middle--often get lumped together in that last batch. This year, rulings on the death penalty, domestic violence and the Ten Commandments came out within minutes of one another, as did the high court's decision in MGM v. Grokster, a landmark case in the long and bitter fight over Internet downloading.

All of the cases posed tricky legal problems and had far-reaching implications. Three of the six were decided by a margin of 5-4. Only one was unanimous.

Somehow, the court was able to reach a consensus in the Grokster case, which pitted entertainment companies against technologists in one of the nastiest, most polarized debates of the Internet age. The balance the court struck, and the unanimous consensus behind it, sent the clearest signal yet that there is a reasonable middle path in the battle over electronic copying.

The Grokster case hinged on whether the makers of popular online song-swapping programs like Grokster and Morpheus should be held responsible when people use those programs to illegally download music and movies.

Technologists urged the court to preserve a previous decision that said innovators shouldn't be on the hook when their customers misuse their technology. That rule, established in the 1984 Sony Betamax case, has fostered the development of everything from the iPod to the Internet itself.

Entertainment companies, meanwhile, insisted that the song-swapping services at issue in the case were used almost exclusively for illegal copying, and therefore those designing and offering such services should be liable for resulting copyright infringement.

The court threaded the needle by saying the song-swapping services could be liable if they actively encouraged their users to violate copyright laws--but not simply for making the technology. In effect, the court sent the message that the law should be used to punish bad behavior, not to single out technology.

Remarkably, not only did all nine justices join the opinion but even many advocates who've opposed each other in the copyright debate praised it as a balanced solution.

Lessons beyond Grokster
It wasn't that the court agreed on everything. Two groups of justices submitted opposing opinions about several key points in the case that the court declined to resolve. In effect, the court reached unanimity by agreeing to disagree on some of the more controversial questions, while finding a core principle around which to build a consensus.

There's a lesson there that reaches far beyond Grokster.

Mutual distrust is about the only thing the warring camps in the long-running battle over electronic copying have shared with each other up to now. Many in the entertainment industry have painted technologists and consumer electronics companies as copyright anarchists who have no qualms about their products being used for wide-scale theft. On the other side, hard-line technologists have accused record labels and movie studios of seeking the power to effectively "veto" any new invention that allows users to play music and movies in new, exciting ways.

Overcoming that polarization will not be easy. But there is a reasonable path forward that does not involve making wholesale changes to copyright law, or aiming legal cannons at technologists. Rather, what is required is a subtle combination of aggressive law enforcement, public education and most importantly a renewed push to make legal content more readily available online.

Any enduring copyright protection regime needs to be built on a foundation of robust, legal alternatives to illegal downloading. Those alternatives must be designed to protect content without inconveniencing users. Apple Computer's iTunes store has already proved that a thoughtfully designed consumer product can attract millions of paying customers, despite the availability of free alternatives. But the growth of iTunes and other licensed services may be hindered by limitations in the catalog of available songs, a lack of interoperability and copyright protection schemes that can detract from consumers' experiences.

Some online music buyers are already complaining about the difficulty of moving their legally purchased songs from one device to another and other seemingly artificial limitations on what they do with their digital music libraries.

These are not problems that can be solved by any court. For legal services to really thrive, technologists who make the devices and the entertainment companies that own the content need to work together toward a simple but broad goal: making virtually any content available legally, as quickly as possible, in as many forms and formats as possible, while protecting it from widespread illegal redistribution.

That means, for example, cooperating to develop digital rights management, or DRM, technologies that are sufficiently flexible and consumer-friendly to achieve wide success in the marketplace.

Along the same lines, if content owners and high-tech pundits can stop sniping at each other long enough to offer nonconflicting messages about the role of copyright and the importance of enforcement, young Internet users may finally begin to get the message that infringing copyrights is neither safe nor morally acceptable.

It's too much to ask that the intellectual property and high-tech communities abandon their differences, beat their swords into plowshares and march arm-in-arm into the brave new world of legal content distribution. Thankfully, that's not necessary. If the leaders from those camps can just follow the example of the Supreme Court in the Grokster case, they may be able to scratch out the consensus that will insure the vibrant marketplace of digital content that they and their customers deserve.