Preparing for the Grokster Watershed

Opinion: If the Supreme Court decides that tech companies can be held responsible for every use of their products, it won't just be file-share fans protesting.

Want to know how heated the lobbying, arguing, positioning and maneuvering over copyright legislation is going to get this fall? Ask anyone whos ever published anything containing the words "peer to peer" for a look in their e-mail in-box.

Chances are good it has filled up in the past few days with helpful messages from publicists and lawyers offering expert opinions on the ramifications of the pending Supreme Court decision in the case known as MGM v. Grokster.

During the year, the court releases its decisions on Mondays—and only on Mondays. But this is its final week of deliberation, and opinion could be issued at any time.

So anticipation is running high. Grokster is the first major digital technology case to appear before the court.

And the opinion issued in this case is expected to play a big role in framing debates over copyright and perhaps even telecommunitcations legislation in Congress.

In anticipation, law firms and their attorneys are using the decision to scout for work. Whichever way the case breaks, they figure theyll have clients. The Grokster case could well be the last legal word on the status of all sorts of peer-to-peer file sharing technology, not just music. That could be a good business for a smart-thinking lawyer.

But lawyers are often lobbyists. And lobbyists—the good ones anyway—work the press. Its a way to speak to Congress. So theyre positioning themselves, getting all their talking points lined up, their spokesmen primed, their points of view well established.

Its part of making sure there are neat, clear battle lines between those who are in favor of changing copyright law and those who arent. This is political positioning of the highest caliber and it gives you some idea of the stakes involved.

What are the possible scenarios? Well, theres very little upside in trying to predict what the court is going to do—just ask the publicist who sent out an e-mail first thing Monday saying "It looks as if the Grokster decision will be handed down today."

But the roughest, most dramatic, outlines are pretty clear.

Essentially, the Grokster case asks the court to assign responsibility for the use of software that allows people to share music and other digital material. Grokster and its partner in the litigation, Streamcast, say they cant be held responsible when customers use their servers for less-than-legitimate purposes. A federal appeals court agreed with them.

The movie studios and record companies, however, think that someone—in this case the two companies that are making file sharing possible—should be held liable every time someone else downloads a song, video or TV show without paying for it. It might be called "sharing," but to the studios, its theft.

The Supreme Court could decide that Grokster is right. It could say that it is ridiculous to hold innovators responsible for nefarious uses of their technology.

/zimages/3/28571.gifAn MPAA leader weighs in on the Grokster case. Click here to read more.

If that happens, the movie studios and record companies will head to Congress and ask for further protections than currently exist in the law. And they will probably make every effort to step up their lawsuits against illegal downloaders, asking for harsher monetary penalties for those who break the law.

They might also ask Congress to make "fair use"—the legal description for copying a page from a book or taping a song off the radio—flatly illegal as a way to prohibit any sort of digital copying.

Thats an extreme argument, of course, but it would set a tone for discussion about legislation.

If the court says Grokster is responsible—that permitting virtually unlimited copying of a work without permission is a violation of the law—you can look for tech companies to plead their case in Congress. It wont just be the file-sharing crowd, either, if the court takes this stance. The host of tech companies who have filed briefs supporting Grokster will demand that Congress update copyright law for the digital age.

/zimages/3/28571.gifRead more Chris Nolan commentary here about the implications of the Grokster case for individual and community responsibility in a networked age.

Holding a company that makes hardware or software responsible for the ways in which that product can be used is a nightmare for everyone. Its a safe bet that tech will be reiterating the reasoning best articulated by Stanford professor Larry Lessig, who has pushed for the adoption of a Creative Commons license—a license that allows those who create the work to best judge how theyd like to protect it.

These scenarios are the extremes, of course. But—like that in-box of experts and predictions—they provide a good way to map the initial landscape. The fight to change copyright law isnt going to be cheap, short or sweet for anyone. 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. She can be reached at

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