March 31, 2005
Thursday

Oh, this is terribly, terribly complicated, say some about a case now before the Supreme Court, the one that pits an Internet technology against the entertainment industry. But it isn't, not unless you think anything having to do with the digital world is ipso facto a mystery.

The issue concerns two companies, Grokster and StreamCast Networks, that have produced software enabling Internet users to share massive amounts of material from their files with other Internet users. The software can be used to cheat. You can infringe on intellectual property rights by illegally transmitting copyrighted movies or music, which is what millions of people are doing with billions of recordings, and that's an inexcusable form of theft.

But the fact that a technology can be used in illegal or harmful ways is hardly grounds to outlaw the technology. The court ruled as much in a case in which Sony Betamax was let off the hook for producing VCRs that can be used illegally - but also legally.

Several justices themselves pointed to technologies that enlarge life's possibilities while affording fresh opportunities for illegality. One such technology was the printing press, perhaps the single most important civilizing tool in the history of humanity. The moving-picture technology that gave us "Casablanca" also gives us pornography and Michael Moore. The Internet, which is infusing our democracy with new energy and putting the near-equivalent of libraries in homes all over the world, is filled with filth and is, in fact, that without which there could be no illegal file sharing.

Offhand, I can think of no technology that cannot be used to do harm. A simple hammer that can be used to drive nails in the construction of new homes can also be used to pound skulls in the commission of murder. The solution, surely, is not to throw all the hammers away but to prosecute hammer-wielding murderers, and the solution in the illegal use of file-sharing software is to pursue those disobeying the law.

To be fair, I must acknowledge that the entertainment industry has been doing just that and hasn't found it easy. We're talking about big numbers here. A huge percentage of the file sharers are sharing illegally. And the industry has reason for concern. You don't invest money, time and talent in the hopes that someone will rip you off. Hit the industry hard enough and often enough, and the industry could - though this is not inevitable - sputter its way to limited production, which would be an affliction for all of us who enjoy much of what it sends our way.

Still, as difficult as it may be, the major part of the answer is still to go after the thieves, not the tool the thieves are using, unless theft is its only use.

In fact, the file-sharing software has multiple uses of a beneficial and legal nature. One is the vastly increased chances afforded musicians to get their work heard through means other than climbing Mount Everest, otherwise known as trying to get the major recording studios to give a listen to what you are doing.

An additional, related part of the answer might be to take the software producers to court for encouraging people to use their product illegally, as was suggested in Supreme Court proceedings. To the extent that the firms are cheerleaders for larceny, make them pay.

The entertainment industry, however, clearly believes the most effective way to serve its own interests is to have the software outlawed, a solution that would be devastating largely because of the precedent. Does this court want to signal inventors to quit inventing? Does it want to throw fresh disincentives at creative minds? Does it want to limit the extraordinary developments that may very well lie in the future?

I hope not, but I hope something else, too, as hopelessly naive as it may sound. As yet another part of the answer, I hope that at least some of those millions engaged in stealing copyrighted material will have an attack of conscience, understand that their bad behavior jeopardizes the freedom and enjoyment of others - and cease. At the very least, the rest of us should avoid a wink-wink, nudge-nudge response to their outrageous ethical lapse. The fact that they are doing something very wrong is not complicated, either.

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