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The Problem with File Sharing

After MGM v. Grokster, are we any closer to a solution?

Late last June, in MGM v. Grokster, the U.S. Supreme Court ruled that file-sharing companies can be held accountable for what users do with their software. I’m not worried, however. That’s because I’ve never used my computer to steal music.

I have reported on file sharing since the heady early days of Napster. I’ve interviewed many of the major players. And I’ve stuck a microphone in the faces of technology industry observers, who have given me their take on the financial, ethical, and societal impact of peer-to-peer networks. But I have never shared the content of my hard drive or downloaded content from others’.

I wasn’t frightened of headlines like “Tech Reporter Busted in File-Sharing Crime Spree.” I don’t steal music for the same reason my parents didn’t want me stealing comic books from the corner convenience store. Forget MGM v. Grokster. It’s about right versus wrong. I’m a journalist; ideas and words are my currency; and I am sympathetic to other creative types, like musicians, who want to get paid for their work.

Nonetheless, I’m not inclined to believe that the Supreme Court’s decision will bring religion to any of these downloading heathens. It’s only six years since the dawn of Napster, but that has been long enough for many computer users to develop their own ethical standards regarding the sharing of music. And free, easy-to-use technology will always stay one step ahead of any law.

Still, I had to laugh when RealNetworks took the Supreme Court ruling and rubbed it squarely in Grokster’s face. “No hassles. No lawsuits,” read the full-page advertisement in the New York Times for Real’s Rhapsody music service. The outline of a judge’s gavel hovered above the words. Rhapsody offers music downloads licensed by the Recording Industry Association of America (RIAA), so its users won’t be subject to lawsuits from music labels.

In its 55-page opinion, the Court had criticized StreamCast Networks, the provider of file-sharing program Morpheus and another defendant in the case, for mentioning the granddaddy of all file-sharing services, Napster, in its own advertisement. That ad read, “Napster Inc. has announced that it will soon begin charging you a fee. That’s if the courts don’t order it shut down first. What will you do to get around it?”

Three weeks before the Court’s decision, I hosted a one-hour CNNRadio special called “The Fight over File-Sharing.” In one corner, representing the content providers: RIAA president Cary Sherman; Motion Picture Association of America (MPAA) president Dan Glickman; Grammy-winning country music star Clint Black; and Marilyn Bergman, Oscar-winning songwriter and president of the American Society of Composers, Authors, and Publishers.

In the other corner, arguing for the right to share files: Lawrence Lessig, cyberlaw expert and the author of Code and Free Culture; rapper and producer Chuck D of Public Enemy; Adam Eisgrau, executive director of P2P United, the lobby group that includes Grokster and StreamCast; and Wayne Rosso, Grokster’s former CEO.

Lessig, who argues that the existing copyright laws were written for the 18th-century printing press and not for 21st-century downloading, drew attention to a strange inconsistency in the White House’s support for music producers in their case against Grokster: why would a Republican administration want to celebrate a victory for regulation?

“This is a totally familiar Republican argument,” Lessig said. “If you regulate in this field heavily, what you’ll do is get much less innovation and investment.”

But Sherman argued that the music industry wants to embrace innovation, too. Black made Sherman’s case by eloquently arguing that music industry employees could lose their jobs if Black’s music sales suffer because of illegal downloading. To Glickman, the whole argument was about how the movie industry could avoid the music industry’s mistakes – like failing to anticipate digital downloads.

The week before the radio show, the FBI, with the help of the MPAA, had shut down Elite Torrents, a website offering access to pirated movies. Glickman told me the MPAA is now starting to sue individuals, just as the RIAA has. I asked if he was concerned that for every Elite Torrents he puts out of business, two or three will take its place. Glickman answered, “You have no choice except to try to go after them, and if you go after them vigorously enough and with the help of the federal government…you at least send a strong signal that this conduct is illegal and it will not be tolerated and it will be punished.”

I am not so sure it will work. I want artists and writers to be compensated for their work, but how will they ever catch the woman who recently sat next to me on a plane and watched a bootleg copy of The Interpreter on her laptop?

Instead of quietly alerting the flight attendant that I was sitting next to a cultural terrorist, I went back to reading my homework for the radio special: Lawrence Lessig’s book, Free Culture.

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