Complex problems rarely have simple causes. Moreover, trying to solve a complex problem as if it were simple usually creates even more problems.
But such is the case with the entertainment industry and the highly complex file-sharing problem. Hollywood would like a simple solution, and as they can’t get much support from the consumers doing the piracy they are going after what they think is the next best thing: the systems used for sharing files.
In the latest round of legal wrangling over the fate of file-sharing systems, the case of MGM vs. Grokster currently being heard in the Supreme Court, the plaintiffs would like the court to believe they have identified a simple cause of their problems: Grokster.
The arguments last week were interesting as they demonstrated just how complex the issues really are. For example, central to the debate was Apple’s iPod because that device and similar machines from other manufacturers can be used to (gasp!) transport illegally acquired music files.
To this end Donald Verrilli, the lawyer for the plaintiff, argued disingenuously that most iPod buyers are honest consumers, the type that pay for their digital music.
Apparently, Justice David Souter disagreed, saying that “even iPod users will steal music if they believe they can.” Souter went on to ask why the entertainment industry would sue Grokster but wouldn’t also want to sue Apple using the same legal flimflam (he actually used the term “theory”). Let’s see, could Apple’s high profile with iTunes give Hollywood a reason to leave that particular can of worms undisturbed?
Justice Antonin Scalia said that, should the entertainment companies prevail, a consequence would be a dampening effect on technology because if “I’m a new inventor, I’m going to get sued right away.”
Scalia then referred to the defendant, named on the docket and in the considerable number of friend-of-the-court briefs as “Grokster, whatever this outfit is called.” While Scalia apparently appreciates key issues in the case, I rather think that if you are unsure of the name of the defendant, we’re going to find it hard to believe you are exercising sound, informed judgment.
A crucial issue is whether Grokster intended to enable piracy. Unless they can find concrete proof of that goal, any suppositions about Grokster’s aims are not relevant. So far, that proof is absent, but this is law, not logic.
Be that as it may, should Grokster be found guilty then Apple, and all the other makers of portable music devices, could and maybe should also be held liable. Then could come the CD and DVD drive manufacturers; the VCR manufacturers; Tivo and the other personal video recorder vendors; ISPs; as well as Microsoft, Sony, IBM, HP and any other company that makes products that could be seen as providing the means for piracy.
While a win for MGM wouldn’t most likely result in such a sweeping attack on so many companies, it would give Hollywood a platform to go after the low-hanging fruit, the small guys who can be made “examples.” And the worrying part is that this same platform could be used to push for legally enforced universal embedded digital rights management in all media products; a truly awful and ultimately ineffective solution.
The issues that the court must wrestle with in this case are more complex than any of the simplistic arguments currently being put forward, and we can only hope that the Supreme Court recognizes that to be the case. To paraphrase the late Johnny Cochran, if the suit doesn’t fit, you must acquit.
A verdict is expected in June. Your verdict hopefully sooner than that to nwcolumn@gibbs.com.
