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Tech Industry

Why punish the technology?

The war against file swapping is taking a dangerous turn, writes CNET News.com's Charles Cooper.

"Grokster and StreamCast are simply digital-age versions of the record sellers or dance-hall operators that, when facing liability for failing to supervise or control the infringement from which they directly profit, seek to evade that liability by leaving the dirty work to others."

Hard words, but entertainment lawyers are paid to be nasty. So it was that a brief they filed with the Supreme Court this week predictably portrayed the file-swapping companies as the antithesis of all that is holy and right. The legal paperwork was submitted in advance of a critical March court date when they will again try to get the court to shut down digital file swapping.

But in its zeal to put the likes of Grokster and StreamCast Networks out of business, the entertainment industry's challenge might lead to a change in the law that renders potentially important technologies stillborn. More about that in a moment.

Ever since Napster first popularized Internet file swapping in the late 1990s, Hollywood and the music studios have viewed peer-to-peer technology as a license to steal. The content industry won its famous battle against Napster (which closed its doors in 2001). Victory was declared, but digital file swappers easily found other peer-to-peer sites.

If a ban on P2P technology had existed in the late 1990s, the MP3 player industry would never have come into being.

The industry pressed its legal attack, but a decision by California's 9th Circuit Court of Appeals last August unexpectedly upheld the validity of P2P file-sharing services. The court found that providers of online file-swapping technology could not be held liable for aiding copyright infringement, in a decision that contained shades of the Sony-Betamax decision two decades earlier.

The entertainment industry was livid. How could the law allow companies that damned well knew they were facilitating illegal file swapping to stay in business? That's where the Betamax precedent comes into play.

In 1984, the Supreme Court determined that Sony was not liable for copyright infringement just because its Betamax video tape recorder might be used by people engaged in infringing activities. The content industry has been itching to knock down this decision ever since. Now it has another chance.

Here's the problem: The law can be a blunt instrument. What's to avert an overly broad ruling that inadvertently prevents a future technology from ever coming into being? Most of the songs that ran on the early crop of MP3 players came from illegal music downloads. If technology that flourished because of customers' illegal activity had been banned in the late 1990s, the MP3 player industry would not exist today.

Truth be told, I've had a tough time trying to decide who to support in this cat fight. I roll my eyes whenever senior executives at Grokster and StreamCast claim they don't know how their technology gets used. They'd have a better chance convincing me there are huge stockpiles of WMD hiding in Laura Bush's armoire than to insist on pleading ignorance.

I still can't bring myself to root for the control freaks in Hollywood. The power brokers who run the show are so focused on the piracy rate part of the story they keep missing the bigger revenue growth rate takeaway.

So they make up a cock-and-bull story that Grokster and StreamCast exert the same kind of centralized control as a Napster. In fact, Napster got shut down because it owned and operated servers that facilitated illegal file swapping.

Truth be told, I've had a tough time trying to decide who to support in this cat fight.

Why punish the technology because some people use it for unlawful means? Speaking as a consumer (and occasional file downloader--legally, of course!), it should be as easy to use content legally as it is illegally. Case in point: the flourishing business that grew up around online music stores.

The entertainment studios took forever to bless the concept. That opened the door for Apple Computer CEO Steve Jobs, who moved on his hunch about how the future was being reshaped. Apple developed an easy-to-use online music site, and that's why it boasts millions of music customers today. (Heads should be rolling at places like Sony, EMI and Universal.)

Ever since Napster got closed down, the content industry's strategy for dealing with the peer-to-peer challenge can be summed up in three words: Sue the bastards. Everyone of sane mind can agree there's a need to address digital piracy. But how about trying something more nuanced than a sledgehammer approach?