Music rules

A Supreme Court ruling against peer-to-peer network Grokster would do more than punish music pirates. It would affect the future of the Internet.

By Andrew Leonard

Mar 30, 2005 | I decided to rip my vinyl in honor of MGM vs. Grokster, the case heard before the Supreme Court on Tuesday that will likely result in a landmark ruling on copyright law.

"To rip one's vinyl" means to convert long-playing records to digital files. And if some doomsayers are correct, it's the kind of thing the music biz would be able to prevent me from doing if the Grokster decision goes their way. In a worst-case scenario, anything that would allow me to copy music, whether it's a CD-burner, some audio-editing software, or a peer-to-peer network like Grokster, would be illegal.

But to be honest, stopping me from taking moldering P-Funk, Rolling Stones and R.E.M. albums and transforming them into MP3s for my own enjoyment is not the highest priority for the entertainment industry. In the Grokster case, a roll-call of music and movie studios are targeting their sights on file-sharing peer-to-peer networks. Their argument is that the creators of those networks should be deemed responsible for what people do with them -- technically, that means they should be found guilty of "secondary liability" for the copyright infringement committed by file sharers.

The case before the Supreme Court does not pertain to whether the actual act of file sharing is illegal. Let's accept for now that when you or I grab a copy of the newest Aimee Mann track from Kazaa or LimeWire, we are committing intellectual-property piracy, stealing royalties from starving artists, and threatening the entire economic basis of the music industry. Personally, I enjoy supporting the artists I like by purchasing their records on iTunes, and I especially savor doing so after I have heard a free sample of their music over the Net. But that's an entirely separate issue from what's at stake in this case. MGM vs. Grokster deals with whether the creators of a technology are responsible for how it used. It's not an understatement to say that the case could influence the future of the Internet.

This is why the "secondary liability" charge makes a lot of folks, particularly those in the computer, consumer electronics and telecom industries, very nervous. A decision in favor of the plaintiffs would represent a reversal of the precedent set 20 years ago in the famous "Sony-Betamax" case, which held that Sony was not liable for any copyright abuses likely to be perpetrated by owners of VCRs because there were "substantial noninfringing" uses of the product. In other words, because the VCR could be used for perfectly legitimate purposes, like watching a rented movie, it was OK for Sony to sell it, even if some people were going to use it to tape copyrighted television shows.

The defendants in Grokster say that because P2P networks can also be used for legal purposes -- such as distributing public domain content or anything for which the copyright holder has granted permission -- they should enjoy the same protection. Last year, the Ninth Circuit Court of Appeals agreed, a decision that surprised many observers of the long-running war between file sharers and the entertainment industry. Over the past decade, the entertainment industry has been winning most of its copyright battles, both in court and in Congress.

No one knows which way the Supreme Court will go, but the tech industry fears disaster: If the creators of programs that enable sharing over the Internet are liable for what people do with the software, then the manufacturers of any devices that enable copying could also be at risk. So everyone on the trail that leads from you to a given digital file is in danger -- the computer manufacturer, the CD-burner manufacturer, the audio-editing software writer, the Internet service provider and the telecom company.

I'm not a particularly paranoid person. But the entertainment industry did do everything it could to stop me from owning VCRs and MP3 players. It drives record company executives nuts that I can plug a newly purchased compact disc into my computer and rip the music on it to my hard drive in seconds. They are constantly experimenting with ways to stop that, and a ruling in their favor in MGM vs. Grokster, even if ostensibly aimed at P2P networks, could give them the legal authority to be even more aggressive than they already are.

So I decided to rip my vinyl in symbolic support of the right to do with my music what I like. But a funny thing happened on my way to the iTunes library.

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