[Commons-Law] When David Steals Goliath's Music

[Ram]

>New York Times

When David Steals Goliath's Music
 
he battle over online music piracy is usually presented as David
versus Goliath: the poor student in his dorm hunted down by a music
conglomerate. It is easy, in that matchup, to side with the student.
But when the Supreme Court takes up the issue this week, we hope it
considers another party to the dispute: individual creators of music,
movies and books, who need to keep getting paid if they are going to
keep creating. If their work is suddenly made "free," all of society
is likely to suffer.

The court hears arguments tomorrow in a suit by music and movie
companies against Grokster, which makes "peer to peer" software that
allows Internet users to exchange songs and other computer files. At
least 90 percent of the material "shared" on Grokster, and perhaps
more, is copyrighted. Grokster gives away the software, but it sells
advertising aimed at the millions of people who use it.

Many big entertainment companies are backing the suit, along with
marquee-name musicians like the Eagles and the Dixie Chicks. But so
are some creative professionals - represented by groups like the
Authors Guild and the Professional Photographers of America - for whom
even a few thousand dollars in royalties makes a big difference.

The technology community has rallied to Grokster's defense. Its most
radical members argue that "information wants to be free" online and
disparage the whole idea of intellectual property. A more modest
argument, and one Grokster relies on in court, is that if it loses,
there will be a chilling effect on technological innovation.

The legal case against Grokster is far from a slam-dunk, and we have
been wary of it in the past. The court ruled, in a landmark 1984 case,
that Betamax video recorders were legal even though they were used to
copy copyrighted material, because they had significant legal uses. It
is true that there are legal uses for Grokster - not every file
exchanged is copyrighted. But it is notable how much illegal use
predominates, and how much its business model relies on theft.

The founders wrote copyright protections into the Constitution because
they believed that they were necessary for progress. Movies, music and
books require investments of money and time. If their creators cannot
make money from them, many will be unwilling or unable to keep
producing. Or they may have to finance their work in troubling ways,
like by building in product placements or taking money from donors
with agendas.

Grokster's supporters are justified in worrying that if the courts are
too quick to rein in new technology, innovation can be stifled. They
are also right to point out that copyright has sometimes been given
too much protection, notably in the Copyright Term Extension Act,
which gratuitously added 20 years to existing copyrights. But these
concerns do not erase the continuing importance of intellectual
property, which is unquestionably under assault.

Both the court and Congress should be sensitive to evolving
technologies. But they should not let technology evolve in a way that
deprives people who create of the ability to be paid for their work.



-- 
Prabhu Ram,
Max-Planck-Institut for Intellectual Property, Competition and Tax Law,
MarstallPlatz 1, 
80539 Munich
GERMANY

Tel: + 49 89 24246226
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