Pirate Justice

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July 4, 2005 (Computerworld) -- Did you listen to the news last Monday, or read the papers the next day? Did you get the impression that the U.S. Supreme Court has declared open season on file-sharing networks that might be used for piracy? You probably did -- that's how the story was reported on CNN, in USA Today and by the major news services.
They got it wrong. Backward, in fact. The Supreme Court said explicitly that file-sharing technology isn't, in itself, illegal. Even if it is used to infringe copyrights. To put the court's point simply: Technology doesn't infringe copyrights. People infringe copyrights.
And in the cases of Grokster and Morpheus, the court said the people who created those particular file-sharing networks were so egregious in advertising their support for illegally trading copyrighted material that they could be sued for contributing to that piracy.
What about the file-sharing technology itself? Not a problem, said the justices. In fact, the court's unanimous opinion starts talking about the benefits and legal uses of point-to-point networks on its very first page.
The problem isn't the technology, the court said. The problem is the mountain of evidence that Grokster and StreamCast Networks (the Morpheus people) obviously intended to support piracy. And for that, those companies will have to face the music.
It's easy to see how news reporters got the story wrong, though. On one side, the music and movie industries were crowing about their great victory over file sharing. On the other side, IT vendors were moaning that now any company with technology that might be used illegally will live in fear of lawsuits. Reporters likely figured that these people knew what they were talking about.
But there was no great victory over file sharing -- just over Grokster and StreamCast. And there's no cloud hanging over all new technologies -- only over companies that invite, encourage and support stealing copyrighted material.
Music and movie companies should crow while they can. From now on, they'll have to prove that a file-sharing network's operators clearly intended the network to be used illegally. That could be tough with targets like Kazaa, which explicitly forbids swapping copyrighted material in its click-through license agreement.
And tech companies shouldn't be moaning. They should be glad the Supreme Court understands the importance of new technologies.
Look, these justices are setting a standard for the entire U.S. court system. And that standard is very tech-friendly -- and tech-savvy. Three of the justices went out of their way to say that CD burners, digital video recorders, MP3 players, Internet search engines and peer-to-peer software are all legal (and to mention that cable descramblers aren't).
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