What does last week's US Supreme Court ruling mean -- for individual file-sharers and for the future of the Internet in general?
The court judgment against Grokster and StreamCast rules that those producing file-sharing programs can be held liable for copyright infringement may actually lead to a reduction in the industry's unpopular prosecutions of individual downloaders -- although it's also likely to make the software harder to come by.
For software developers and the Web at large, activists fear that the ruling will stifle progress, making entrepreneurs wary of releasing any technology that could be used illegally. The court has "unleashed a new era of legal uncertainty on America's innovators," says Fred von Lohmann, senior intellectual property attorney for the Electronic Frontier Foundation (EFF), which lobbies in defense of "digital freedoms."
Recent history is littered with examples of the entertainment industry panicking about technologies that ended up proving harmless -- and which might not exist today had they been subject to a ruling like this one.
"I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone," Jack Valenti, then head of the Motion Picture Association of America, said in 1982.
Those arguments don't apply here, the court said. "There was no evidence that [the VCR manufacturer] Sony had expressed an object of bringing about taping in violation of copyright or had taken active steps to increase its profits from unlawful taping," the judges wrote.
But that seems to leave a loophole. What seems crucial is proving that the company intended to profit from lawbreaking. So another software firm might reduce the risk of a lawsuit by declaring at every possible opportunity that its product shouldn't be used illegally, and by actively encouraging legal uses.
First, is file-sharing just stealing?
Unauthorized downloading certainly infringes copyright, and copyright infringement can certainly be a crime. For the industry, that's the end of the story -- as it is for the government.
"Piracy is theft, pure and simple," British Arts Minister Estelle Morris said last year. "Whether it's Jamelia or a jobbing musician, the artist suffers. We owe it to them to make sure they get a fair return for their creativity, flair and inspiration."
You won't find many people on the pro-sharing side of the argument speaking up for total copyright anarchy. What they say is that the situation is more complicated. For a start, if it's true that downloads don't affect sales, it would be a victimless crime. (Which doesn't necessarily make it all right: the British Phonographic Industry (BPI) argues that unauthorized file-sharing would be wrong "regardless of whether a single record sale was lost").
Second, there's the argument that copyright in a work of art simply isn't the same as, say, your rights in a piece of land that you own. Patents and copyrights, from this viewpoint, have always been aimed at finding a balance -- as the Harvard professor Lawrence Lessig puts it -- "between rewarding creativity and allowing the borrowing from which new creativity springs." That's why terms of copyright eventually elapse; in the original US Constitution, they elapsed after just 17 years. Under Thomas Jefferson's original standard, it would no longer be illegal to download, for example, Madonna's 1986 album True Blue.
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