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Awaiting Supreme response to MGM v. Grokster

As geeks said their prayers last night, on the eve of Grokster's hearing before the Supreme Court, The VC's Orin Kerr posted this shout out, asking to hear from anyone who waited in the crummy weather for a seat at the arguments. (Update: Kerr heard from one attorney who waited in line, Bruce Boyden, and has posted an update here.)

Even as I type, 28 of the world's largest entertainment companies are making their case against Morpheus, Grokster and Kazaa software. The question at hand toes "the border between copyright and innovation," as the Electronic Frontier Foundation site states. "When should the distributor of a multipurpose tool be held liable for the infringements that may be committed by end-users of the tool?"

In other [grossly unsophisticated] words, should we ban a technology because some people do illegal things with it?  Yesterday, ALM's National Law Journal aired its own debate, with former Solicitor General Theodore B. Olson arguing that file sharing is theft and Charles S. Baker, counsel for Streamcast, responding that Grokster is not Napster.

The issue kicks the media industry right in its, er, business model transition. Case in point: In the opinion of the The New York Times' editorial board, published yesterday, Grokster's business model "relies on theft" (it sells advertising on peer-to-peer file sharing, extracting value even if the sharing is illegal), intellectual property is "unquestionably under assault", and the Court and Congress "should not let technology evolve in a way that deprives people who create of the ability to be paid for their work." The first graph sounds like it could have been written by The Times' own attorneys:

"[W]hen the Supreme Court takes up the issue this week, we hope it considers another party to the dispute: individual creators of music, movies and books, who need to keep getting paid if they are going to keep creating. If their work is suddenly made "free," all of society is likely to suffer."

"Never have I seen The New York Times get it so wrong," posts Lawrence Lessig in rebuttal. By way of contrast, Lessig reader Gareth Simpson links this opinion by David Rowan in The Times Online. Rowan, who invokes the Sony Betmax case, argues:

"Why should the music industry be able to close such communications channels? Just because technology comes along and disrupts existing business models, should copyright owners not find clever ways to adapt, rather than suing 12-year-olds and fighting software developers in court? If the studios do win, it will be the consumer who loses. The next generation of digital music players, Internet telephony, TV recording equipment -- all will suffer from a new legalistic caution that will stifle progress."

Click here for Lessig's BitTorrent link of all the briefs in Grokster.

Click here for the Electronic Frontier Foundation's page of links and information about Grokster and supporting documents.

I welcome your comments.

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Posted by Laurel Newby on March 29, 2005 at 02:35 PM | Permalink | Comments (1) | TrackBack (0)

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