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A victory for technology – and consumers

This column originally ran in ComputorEdge on May 16, 2003
(Issue 2120, Scammin' and Spammin')

If you didn't see the news, on April 25 a federal judge in Los Angeles ruled that file-swapping software per se is not illegal.

And it wasn't a partial victory or lukewarm victory for consumers – the judge laid out in excruciating detail why the music and film companies were wrong in their lawsuit against publishers of file-sharing software that uses peer-to-peer technology.

Judge Stephen Wilson's decision was an immediate victory for the publishers of Morpheus and Grokster, two file-sharing utilities that use peer-to-peer protocols. Unlike Napster, which hosted a search utility on its servers – and was created expressly to swap digital audio files (MP3s), Morpheus and Grokster can be used to search for a find any file – and the search is pure peer-to-peer, meaning that there is no central server.

More importantly, his ruling was a larger victory for the rest of us who have at last seen an American court come down on the side of the citizens rather than the all-powerful corporations.

Wilson's decision will certainly be appealed by the entertainment industry – which has been using the Internet as a whipping boy to explain away quarter after quarter of disappointing corporate results.

Sales down? Blame the Internet. That's less frightening than confronting the new reality created by 9/11, less painful than looking at your own decisions.

Getting the point

Unlike other judges who have shamefully rubber-stamped ludicrous legal claims by Hollywood, Wilson apparently took the time to look at the technology behind the Gnutella protocols that allow for effective, efficient peer-to-peer networking. What he wrote in his decision is important, for it will make the music industry's appeal more difficult in that Wilson clearly defined the issues at stake here:

"Defendants distribute and support software, the users of which can and do choose to employ it for both lawful and unlawful ends. Grokster and StreamCast are not significantly different from companies that sell home video recorders or copy machines, both of which can be and are used to infringe copyrights."

Of course, the entertaiment industry did try to block the sale of both audio cassette recorders in the late 1960s and videocassette recorders a decade later, each time arguing that the new technology was simply a tool for piracy. Each time, they lost – and then used each media to make tens of millions of dollars in profits from consumers hungry for new technology.

A telling tale

Of course, in each case, the entertainment industry refused to embrace the new technology until forced to by the courts and consumer demand.

And so it is unlikely that music and movie studios will seriously invest in online distribution until the courts again uphold the principal that technology itself cannot be banned.

It was a 1984 Supreme Court ruling upholding the legality of the videocassette recorder that established the precedent at the heart of Wilson's ruling – "substantial noninfringing use." This legal principal holds if a new technology has legitimate uses, then the technology itself is legal – even if some users choose to use it to break the law.

But going after individuals who share music online is not something the recording industry wants to get very deeply into. There have been a few isolated incidents of the Recording Industry Association of America suing individuals, but with tens of millions or more folks now swapping music online, the recording industry risks alienating its core customer base.

When the RIAA turned over the IP addresses of cadets at the U.S. military academies it said were swapping music, it unleashed a rather nasty backlash. These kids were preparing to go put their lives on the line to defend our nation, and the RIAA was fixated on profit margins.

That kind of headache isn't going to go away until Hollywood wises up and begins working with consumers – instead of waging war against us.

Perhaps Wilson's decision will cause some in Hollywood to start accepting the reality of the Internet and begin finding ways to use it.