The Supreme Court heard oral arguments on March 29, 2005 for MGM v. Grokster, the landmark case which will broadly effect copyright law for a generation, and the future of American technological innovation. (and also how law abiding Americans rightfully steal their music) Napster was shut down in 2001 in a comparable case, Aimster, the file sharing service which used AOL's Instant Messenger, went down in flames in 2003, even though they brilliantly changed their name to Madster. But Grokster is not an ordinary file sharing service, Grokster is KING of the 'Sters', ruling widely with it's sub-minions the mighty Morpheus and elegant Streamcast. Grokster has won a string of legal victories; first in Los Angles District Court, (April 2003) and then in the Federal 9th Circuit Court of Appeals which concluded that ever since the player piano, every new method of duplicating sound results in a lawsuit. In this case "the defendants are not liable for contributory and vicarious copyright infringement..." (August 2004) This means that Grokster is not responsible for what people do with it's software.

Grokster is a family owned business, (I think the Mafia is also family owned) which uses peer-to-peer technology licensed by Fastrack which is similar but not congruent to Napster. It enables web surfers to search folders on each others computers over the Internet and copy the files they want directly to their own computers. College kids used Napster to trade music files with each other, and the craze spread throughout the entire world until Napster lost in court for helping teenagers loot the music industry of every song since Benny Goodman. How many of those they actually would have paid for, is questionable. "Hey listen to this one, from "The Good, The Bad and The Ugly!"

The difference in Grokster is that it doesn't have a centralized network like Napster which indexed all the illegal downloads, and facilitated chat lines and transactions through it's central server. Grokster hears no evil, sees no evil, does no evil. (Their lawyers can prove it.) Whatever people do with it's file sharing software is strictly up to them, like email. Can Microsoft be sued because a terrorist sends an email planning to kill thousands, even if they attached an old Cat Stevens tune along with it? Grokster asserts its software is used for many legal uses, like sharing original recipes for chocolate cake, and "the Bible, the Koran, and the Communist Manifesto." (Some modern versions of the Bible are actually copyright protected.)

"Your honor, this MP3 service did knowingly allow it's members to transmit our New International Funk Jam version of the prophet Isaiah and we want them PUNISHED!"

Where Would We Be Without Blockbuster?

The lower courts relied heavily on the 1984 Supreme Court decision Sony v. Universal Studios. Sony was sued by Universal because it's new invention, the Betamax video cassette tape recorder, was used to record TV shows. (omg!) Universal told the world that "the VCR was to copyright as the Boston Strangler is to a woman alone at home" and predicted that it would be "the death of copyright." (Run for your lives!!!) Radio was also supposed to be the death of copyright because it gave away music over the airwaves.

The narrow 5-4 majority was about to kill the VCR forever until Sandra O'Connor had a sudden mood change at the last minute. The Court then established that the technology inventor is not responsible for illegal uses of it's product as long as there are credible legal uses. It also ruled that recording a TV show for the purpose of watching it later (time shifting) was 'fair use', except if you skip the commercials. This ruling has preserved innovation, and created the video rental empire which the movie industry would have lost had they gotten their way.

Supreme Interpretation

From a brief look at the bloggers who covered the case, below are few impressions I distilled from the comments of the Justices and Lawyers.

Justice Rehnquist: Voted with Universal against Sony in 1984, and asked a few clarifying questions but had to leave many times with the help of an aid.

MGM: -He's a beautiful man, we wish him the best of health through the end of this case.

Justice O'Connor: She wanted to know exactly what "rule" the entertainment industry wanted to propose which would determine whether or not the inventors of a technology should be held liable for it's users activities. For example, "Active Inducement?"

MGM: "I don't know Madam swing voter, how about, 'They're not allowed to steal our stuff? Is that a good rule?"

Justice Scalia: Questioned whether an innovator of a new product could know if he would be sued "out of the box" for a new invention. He said, that if ''I'm a new inventor, I'm going to get sued right away...'' He referred to the company as ``Grokster, whatever this outfit is called.''

MGM: "Yeah, Grokster, Theftster, Stealster, whatever. Thieves use it to steal 2.6 billion songs, movies and other digital files each month. 90% of all file sharing is illegal!"

Justice Stevens: Pointed out that if 10% of Grokster file transfers were legal, that would mean there are millions of legitimate uses every day.

MGM: " But ...?"

Justice Souter: By their logic, wondered why they weren't suing Apple for the iPod. (The top iPod can hold 15,000 songs, few people believe kids are filling them by paying $.99 a song on iTunes.)

MGM: Lawyer Donald Verrilli Jr., said that "most iPod buyers are honest consumers who pay for their digital music..."

Justice Souter: "Uh huh."

Justice Breyer: Wanted to know if the ruling they were seeking would have discouraged the inventors of other technologies that can also be used to infringe on copyright protected material such as the Xerox machine, the VCR, Apple's iPod" and, for that matter, the Gutenberg press?"

MGM: -holding head in hand, watched the ground

Justice Thomas: Never asks questions in court, didn't ask any at this hearing.

MGM: -best opinion so far.

As Grokster began parading out of court with a 500 mile high stack of CD's and DVD's:

Justice Ginsburg: Became annoyed by Grokster's lawyer, Mr. Taranto, when he suggested that the Sony Ruling ...has protected innovation, ...settled the issue and ...should not be altered. Bada boom, bada bing, you may step down.

Justice Ginsburg: Retorted that the Sony rule was really not all that clear.

MGM: -lifted head ever so slightly from a pool of tissues, snot and despair

Justice Kennedy: Remarked that profiting from illegal activity as a way to get start up money for a new business "just seems wrong to me"

MGM: -slightly raised eyebrows on an otherwise blank stare

Justice Kennedy: Also discouraged that the entertainment industry did not propose a test to decide when a neutral technology was liable for copyright infringement.

MGM: Mumbling to self, "You don't like the 'if you help people steal our stuff it's wrong' test?"

The chief executive for Sony BMG Music Entertainment, Andrew Lack, summarized with a witty original assessment of Grokster, which he said, ''doesn't pass the smell test with a lot of the justices.'' (Except maybe for the justices that ruled on any of his cases.)

Conclusion:

Even though Grokster's "I'm not actually there when the thefts take place" defense is transparently self serving, it's evident that the Justices are considering the broad implications that their ruling will have on future technological development and America's ability to innovate in a highly competitive world economy. Many inventions of the past that could duplicate copyrighted material are now an integral part of our high tech society. For example, your web browser made a copy of this copyrighted web page, and placed it in your Temporary Internet Files folder on your computer. But I'm waiting for the Supreme Court ruling on this case, expected in June, before taking any action.