Listening to lawyers for Grokster Inc. and StreamCast Networks argue before the Supreme Court of the United States in a file-sharing case was like watching a scene from a bootlegged copy of "Casablanca:" They are shocked, just shocked, that people are using their software to steal copyright material .
Lawyers for Metro-Goldwyn-Mayer Studios and other creators and licensers of copyright material made the more credible case: That people who market file-sharing software know exactly what it is going to be used for. In the vast majority of cases, it is going to be used by people to take something that doesn't belong to them without paying for it.
When sharing becomes stealing
It's being done every minute of the day, by young and old alike. They are "sharing files," with the files containing not something they wrote or something they created. The files are full copies of movies and commercial music.
And just as Grokster and StreamCast see nothing wrong with giving people to ability to steal copyright material, most of the people doing the stealing apparently see nothing wrong. Presumably they know it would be wrong of them to walk into a store and slip a CD into their coat, but they don't recognize that stealing what's on the CD is wrong -- even though what's on the disc represents the sweat of another person's brow.
Or maybe -- and this is a frightening thought -- they would be just as willing to steal the CD from a store if they were sure they wouldn't be caught.
The case argued before the Supreme Court last week is a complicated one. The Associated Press reported that justices were wondering aloud whether the protection MGM is seeking might have discouraged past inventions like copy machines, videocassette recorders and iPod portable music players -- all of which can be used to make illegal duplications of copyright documents, movies and songs.
Justice Antonin Scalia seemed inclined to think that a ruling for the copyright holders would inhibit inventors, because they would be afraid of getting sued if their invention were misused.
Justice Anthony M. Kennedy pressed a software lawyer on the question of whether profits from trafficking in stolen property can rightfully be used to help finance a young technology business. & quot;That seems wrong to me, & quot; he said.
As The Washington Post pointed out, Grokster and StreamCast have promoted their products based on the access they give to illegal material and have frustrated copyright holders' efforts to police their use. "A company that builds its entire business model around facilitating illegality should not be immune from liability because of the possibility of innocent use," The Post said.
Too close to call
No one was willing to predict which way the court will rule, based on the broad and lively questioning of lawyers from both sides by the justices.
But one thing is certain. If MGM et al lose, they cannot afford to give up the fight. They are simply going to have to expand their efforts to prosecute individuals who violate copyright law.
Recording companies have sued more than 3,400 individual pirates. At least 600 of the cases were eventually settled for about $3,000 each.
As cumbersome as that might be, it is possibly the only way to deter the theft of intellectual property if the court sides with the file-sharers.
The most effective deterrent would be for copyright holders to imbed booby traps in their material that would destroy a thief's computer hard drive. But courts have already disallowed that tactic.