MPAA Leader Weighs In on Grokster Case

By Chris Nolan  |  Posted 2005-05-04

MPAA Leader Weighs In on Grokster Case

Dan Glickman, a former congressman and a Cabinet member in the Clinton administration, took over as CEO of the Motion Picture Association of America last fall.

Although Glickman didnt initiate the associations lawsuits, which have led to the U.S. Supreme Courts pending decision on the legal merits and ramifications of peer-to-peer file sharing, his brief tenure has coincided with the hearing of what is perhaps the most-watched legal action in the tech community.

Its a case that will set the tone for how digital copyright is managed—legally and in the real-world marketplace—for some time to come.

Glickman, who is making a deliberate effort to talk to more tech folks more frequently, sat down with me for an interview in his Washington, D.C., office Tuesday morning.

What do you think the Supreme Court is going to decide in MGM v. Grokster?

Im not clairvoyant. My guess is, if I were betting, that we—meaning the MGM et al group—will win a victory. I cant tell you how sweeping the victory will be, nor can I tell you whether the issue ultimately, in part, gets remanded back to the district court for further evidentiary discussions.

The betting around Washington is that it is going to be sent back to the 9th Circuit Court of Appeals.

Yeah. I think if its sent back, it will be sent back with an affirmation of the 9th Circuit. It will be sent back with the recognition that conduct which is geared to encourage people to infringe is wrong and illegal, and if its sent back, it will be sent back with some different legal context in mind.

Is conduct innovation and invention, or is it encouragement of the innovation and invention?

Its clear the conduct is not innovation or invention because were all in that game, whether were in the technology business directly or the content business. The conduct Im referring to is the conduct which actively encourages people to break the copyright law, and that is what we saw in Grokster, where we have a peer-to-peer service that is established, in our judgment, to encourage people to take music and movies without paying for them.

Grokster is set up in a way that avoids "ownership." Thats kind of a trend, and if I were you, Id be worried. Are you?

Well, obviously, were worried enough to go to court to try to stop this behavior from occurring.

Ive got on my desk—you see, Hear no evil, see no evil, speak no evil—the fact of the matter is that the law is replete with evidence that [if theres] active or constructive knowledge that the law being broken, you cant escape from that, you cant hide from that. You cant say I dont know and I dont care.

So, the vogue in some tech companies to think, Oh well, if its out there on the network, its off our servers, we dont have to worry about it, is not one that youd cotton to?

Its certainly one we dont cotton to when, in fact, the user is encouraged to in fact infringe. This is, of course, a tricky area. I dont know exactly how far the court is going to go, and Im not an expert lawyer in this situation.

Almost everyone Ive spoken to in the past couple of days has talked about how engaged the justices were, and they were struck by the astuteness of their technical questions, thats both tech people as well as people here in Washington.

I sat in on the hearing, and all but Justice Thomas asked serious questions, all the way from somewhat complicated technology questions to more basic questions about the role of copyright in a modern society.

Lets talk about that. My feeling is that the Grokster case is really the thing everyone is waiting for. That after this, there will be some congressional redress or action. Theres a feeling that Congress will somehow update or change copyright law, either to protect companies like your members against the wink-wink-nudge-nudge or on the part of technology users to allow them more freedom and to relieve the threat that they feel is hanging over them.

From the larger perspective, we have to recognize that creative juices are largely fed through some form of compensation. That is that while, yeah, some people do create out of the goodness of their heart, it defies the laws of human nature to think that people are going to come up with new ideas—whether its movies, music, books, software or other inventions just because its a sweet and wonderful thing to do. Thats that side of the coin.

The other side of the coin is that technology is changing so rapidly and consumers desires for new products are changing so rapidly that its harder and harder to fit an old model into this new distribution system that weve got.

On the other hand, I went to the Consumer Electronics Show in January, and I saw all this amazing stuff. [The fact that] all these new things had movies—theyre running things that we have created—on there shows that its a little bit like the old song, Love and marriage go together like a horse and carriage—you cant have one without the other. Its going to get trickier and trickier to try and figure out how to compensate artists and creators in this new world.

Next Page: The tech and content worlds need to work together, Glickman says.

Tech and Content

Having said that, Larry Lessig has put forth his Creative Commons licensing idea. Former MPAA head Jack Valenti didnt quite endorse it but seemed receptive. Have you changed course on that?

My position—at this stage—would be roughly the same as Jacks.

The one thing I am trying to do is—the tech world and the, I hate to use the word content, world, because were all kind of in this together—these two worlds are worlds that have to work together. What Ive noticed in Washington over the past 10 or 15 years is that every issue thats worked on becomes Armageddon here, and I want to try and keep these issues as much as possible from becoming another Armageddon type of thing.


The only thing you can really do is keep talking, keep the lines of communication open. The other night, I was at a dinner for Bill Gates. Microsoft invited me to come. Theres all sorts of opportunities where we can work together and talk.

Are you talking to any companies besides Microsoft?

Yes. We as an organization are talking to all the companies.

Including TiVo?

Yes. As a matter of fact, at the Consumer Electronics Show, I met with the TiVo people. Theres no reason not to meet with them.

I dont think a lot of people understand the television aspect of the motion picture business [Most TV shows are produced by the studios].

Its like the old Pogo thing: We have met the enemy and it is us, so to speak. Who would have thought that them would become us? Television—and its not just television, its all sorts of delivery systems to the individual—are all now part of our world, and they werent years and years ago.

Thats an interesting point. When you talk about MPAA, youre talking about people who are used to selling large packages of content to people. Were moving into a one-to-one world, and TiVo allows me to record a program, not necessarily watch a channel.

The concept of time shifting generally, thats obviously an enormous change, particularly for the television and broadcast part of this business. Modern technology, digital technology will allow the consumer to do an awful lot of things that are inconsistent with the historic mode of how broadcast television was created. Its just an enormous challenge for people in this business. Thats why so many of them have gone into multiple businesses.

What kind of time frame do you see for Grokster?

The decision will come out sometime near the end of June [the Supreme Court adjourns at the end of June and issues its opinions before that date]. And then well see. No body knows exactly what the decision is. Obviously, were getting ready to anticipate that, both offensively and defensively, as Im sure some in the tech community are doing as well.

Were waiting to see what it is and then to see what, if any, remedies are needed or desirable, either in the legislative context—more than likely there will be a strong look at that—but I think the marketplace will be the main place where a lot of this stuff is decided. technology and politics columnist Chris Nolan spent years chronicling the excesses of the dot-com era with incisive analysis leavened with a dash of humor. Before that, she covered politics and technology in D.C. You can read her musings on politics and technology every day in her Politics from Left to Right Weblog.

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