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Getting real about the Grokster case

Public-interest advocate Gigi Sohn says the peer-to-peer debate can't be resolved through one-sided proposals.

Over the next few months, the Supreme Court and--likely--Congress will resume a debate over rules that could determine whether consumers will continue to enjoy the benefits of many of the gadgets CNET covers.

The debate is specifically about what kind of legal liability--if any--technology manufacturers, financiers, Internet service providers, journalists and others should have if their actions "induce" another to commit copyright infringement.

While the case may appear to be simply about illegal file trading, its implications are far deeper.

Last year, Congress considered a bill that would have made it easy for copyright holders to sue these parties for the illegal acts of others and thereby control technological innovation by threat of litigation. The Induce bill was criticized by every sector of the technology and consumer electronics industries, as well as by financiers, technology journalists and consumer groups. After several attempts at negotiation, the parties could not agree on the proper standard for liability.

Congressional action this year will largely be shaped by what the Supreme Court does in the pending case involving Grokster, the peer-to-peer software used by millions. While the case may appear to be simply about illegal file trading, its implications are far deeper.

This case will, in part, decide whether the court's 1984 Sony decision will survive. That case found that the sale of copying technologies, like the VCR, is legal as long as there are "substantial noninfringing uses" for it. That decision led not only to an explosion of new consumer electronics products, but it also helped usher in the computer revolution, opening up a whole new vista of choices for consumers.

Big media companies like the movie studios have been fighting it ever since, despite the fact they have earned millions and millions of dollars from the sale and rental of videotapes and DVDs.

Lawmakers in the fray
Regardless of how the Supreme Court rules in the Grokster case, it is almost inevitable that Congress will try to legislate. If the big media companies lose, they will want Congress to reverse the decision. If they win, the companies will want the decision codified in law. We understand that and look forward to the debate.

When that debate arises, nonprofit public advocacy group Public Knowledge will maintain the same core principles it did last year in the many policy battles over file sharing. The first principle is that manufacturers of lawful technologies should not be punished for the wrongdoing of individuals who use those technologies.

That does not mean that we support any specific business model, particularly if that model is built on copyright infringement.

The second principle is that infringement is wrong and that current copyright laws should be enforced against infringers. That is why we have, in most cases, supported civil lawsuits by copyright holders.

The third principle is that because copyright law should benefit the public with new creativity, the file-sharing debate must also focus on viable compensation mechanisms for artists.

When you are faced only with one-sided proposals, it is hard to say anything but "no."

These principles are far from radical--indeed, they are shared by the vast majority of the many companies and nonprofit organizations with which we work.

But it is difficult for Public Knowledge, or anyone, to find the elusive "middle ground" in the file-trading tango when both sides are not willing to dance.

While we supported two alternatives to the original Induce Act, the bill's supporters did not put forth any alternatives. Nor did big media companies budge when they proposed five-year prison sentences for uploading just one copyrighted file, along with outlawing technologies that permit skipping video and DVD advertisements.

When you are faced only with one-sided proposals, it is hard to say anything but "no."

But we are in a new year and a new Congressional term. Some media companies are choosing to compete with file-trading networks, sometimes using peer-to-peer technology, and that is a development we applaud.

Public Knowledge believes that online content stores that are easy to use, reasonably priced, permit flexible uses and have large catalogs will win consumers' hearts and pocketbooks, and prove once again that technological development is better left to the marketplace.

Of course, we recognize that issues surrounding who should ultimately control technology will somehow always land in policymakers' laps. When they do, we will look forward to debating their merits and to working toward a solution in which everyone--media companies, equipment and software makers and, most of all, consumers--wins.