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Theft by any other name

Critics of the Supreme Court's Grokster decision never mention the real stumbling block, writes CNET's Charles Cooper.

The ink on the Supreme Court's Grokster ruling was barely dry when Ed Black began lamenting the chill he believed the 9-0 decision would have on innovation.

"This is a very dangerous decision for technology and innovation," said Black, who runs the Computer & Communications Industry Association. "If you think of the Sony decision as a shield or an umbrella, we're afraid some holes have been punctured in that umbrella."

That's a mouthful. But is it true?

Considering a decision by San Francisco's 9th Circuit Court of Appeals, the high court overturned the lower court's expansive (and wrong) interpretation of its 1984 Betamax decision. The lower court had claimed that any noninfringing use of peer-to-peer software was sufficient to absolve a company of liability for copyright infringement.

Ever since Napster became an overnight phenomenon in 1999, their conversation has been defined by a raised middle finger.

The high court wrestled with a complicated issue in coming to its unanimous conclusion. It wasn't about peer-to-peer as a technology, per se. Rather, the justices had to decide whether a distributor should be liable when its peer-to-peer technology gets used both for lawful and unlawful purposes.

The Supremes still left in place Betamax's protections for technologies with noninfringing uses, though in delivering the opinion of the court, Justice David Souter was specific about whose feet were being held to the fire, and why.

"We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties," Souter said.

Viewed from that perspective, the Supreme Court did not deliver a blow against new technologies so much as it delivered a blow against the use of new technologies where the intention is to break the law. Poll

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This is all part of a bigger dispute between Hollywood and Silicon Valley about the rules governing digital file sharing. You would assume the folks on both sides of this squabble would recognize the potential opportunity. But this remains a dialogue of the deaf. Ever since Napster became an overnight phenomenon in 1999, their conversation has been defined by a raised middle finger.

No doubt there are very tangled legal issues to get sorted out now that the case is being returned to a lower court to get retried. In the meantime, I'd love to hear the would-be defenders of the cyber common weal at places like the Electronic Frontier Foundation once--just once--come out and publicly declare that Grokster's business model is predicated on breaking the law.

With a big wink and a deep harrumph, the Grokster case has all too often been portrayed by supporters as a battle for the right to innovate. A loss would sound a death knell for new technologies. The bad guys would win, consumers would lose. Sack and ashes for the rest of us.

They never mention the uncomfortable truth that this constitutes a form of theft. Information may want to be free, but there's still the unresolved matter of downloading copyright songs, willy-nilly and without permission.

Grokster and its co-defendant Streamcast have failed to stop piracy on their networks. That's why they lost their argument before the Supreme Court. Maybe they'll have better luck with a judge in the lower court. Still, how they will argue that copyright infringement was not going to be a big part of the activity on their networks escapes me.