Published in Pop + Politics dot com, September 16, 2004

August 19, 2004 was the day I downloaded a text version of Shakespeare’s "Much Ado About Nothing" over the Grokster P2P network. It was my way of thanking the Ninth Circuit Court of Appeals in California for their decision in favor of Grokster Limited and Streamcast Networks, Inc.

If you've never heard of Grokster, you're probably wondering what the significance of this case is. Why in a world with looming presidential elections and international conflicts is file-sharing and peer to peer (P2P) software creating such a fuss? The struggle that began with Napster several years ago and continues with true P2P software is not a struggle solely for your and my ability to download music (legal or illegal). The struggle is more about allowing innovators to bring to market new technology with few legal constraints.

The Grokster decision allowed this freedom -- or rather, it reaffirmed it -- while the Motion Picture Association (MPAA) and the Recording Industry Association of America (RIAA) wish to crush it. MGM v. Grokster, initially decided in April 2003 and upheld on August 19th, fell under the Sony-Betamax principle. Back in 1984 Sony had produced the Betamax, an earlier version of the now ubiquitous VCR. The Betamax (like today’s VCRs) was designed to allow viewers to record television broadcasts and watch them at a later time. The claim made by the content holders -- in this case Universal City Studios -- was that the recording of their copyrighted content was illegal and infringed on their copyright. The Court, with a decision written by Justice Stevens, delivered two important conclusions. First, the noncommercial recording of material over public airwaves was fair use. And second, Sony could not be held liable if the technology it created is capable of substantial non-infringing uses.

And so it was with Grokster and Streamcast. P2P was necessary only to have “substantial non-infringing uses.” If you have participated in the SETI project, or visited Project Gutenberg, or seen what a company’s website looked like three years ago via the Internet Archive you are aware of the substantial non-infringing uses. If you have ever missed or skipped class and watched a professor’s lecture at a later time or referenced downloaded essays then you are acutely aware of the importance of P2P.

The future of P2P is not entirely secure. The implications of the decision lie in two events:

1. A possible review by the Supreme Court of the Ninth Circuit Court of Appeal’s decision
2. Congressional action.

While we can have little impact on the former, we can have a major impact on the latter. Justice Wilson wrote in the Grokster decision that the courts, as the Constitution has stated, should leave matters concerning “the power to promote the progress of science and the useful arts” to Congress.

And Congress has already begun the process of reversing the Grokster decision in the form of the Inducing Infringements of Copyright Act of 2004 (IICA). Introduced by Sen. Hatch (R-Utah) and Leahy (D-Vermont), and commonly referred to as the INDUCE Act, IICA will become a killer of new technology as well as expand the scope of what a copyright holder can sue for, in effect circumventing the Sony-Betamax principle. The most pernicious language of the law, “intentional infringement,” would create a standard where if someone thought you meant to encourage copyright infringement with technology you created, you would be guilty of infringement.

Or, as Ernest Miller, founder of LawMeme and fellow of the Information Society Project at Yale Law School, brilliantly describes: “If contributory liability is similar to charging the promoter of illegal street races for reckless driving, the INDUCE Act is similar to charging automakers with reckless driving for making fast cars that can be used in street races.”

The consequences of the language under INDUCE reach beyond its chilling effect on new technology and could potentially harm First Amendment and free speech protections. Journalists or website publishers might be liable for posting information or a link to infringement tools, or manuals on how to use them.

So what might a potential lawsuit look like? The Electronic Frontier Foundation (EFF) has posted a fake lawsuit under the INDUCE Act against the iPod. Yes, the ubiquitous iPod could be at risk under INDUCE. Lawmeme at Yale University has compiled a list of current technologies that would be adversely affected by the legislation. Some highlights include: Legos, AM/FM transmitters, arcade emulators, VOIP, and The New York Times. You're probably thinking, “There is no way the iPod will be affected by the INDUCE Act,” and you are correct. Apple and the RIAA have created the iTunes Music Store (iTMS) and have invested too much in continuing the popularity of the iPod to risk damaging its reputation. But it is the fifth, sixth, or even seventh generation iPod with video support that will never come to fruition because of this legislation. It is a product more advanced and more user-friendly than the iPod, a product yet to be manufactured that will never come to be because of this legislation. The INDUCE Act is not an attack on the accepted technology of the present, it is an attack on the technology of the future, on creators who dare to dream of the technology of the future.

So what can be done? The INDUCE Act is presently being shepherded through Congress by a single voice, that of the entertainment industry. We must demand that other voices be heard. EFF has set up an online petition asking Congress to oppose the act. As of now the passage of the Act has slowed amidst rising pressure, but nine more Senators have signed on including Senate Majority Leader Bill Frist (R-Tennessee) and Senate Minority Leader Tom Daschle (D-South Dakota).

The Grokster decision was the first step in guaranteeing our freedom to create and innovate, we should make sure the INDUCE Act doesn’t inhibit the progress we’ve made.