A lawyer/blogger named Timothy K. Armstrong wrote up a nice summary of the opening arguments in the MGM v. Grokster case that went before the Supreme Court today. The whole entry is worth reading, but I'll just excerpt the following bit and then provide some of my own commentary on the case.
At least some of the Justices, Scalia in particular, seemed troubled by how an inventor would know, at the time of inventing, how its invention might be marketed in the future. How, some of the Justices asked MGM, could the inventors of the iPod (or the VCR, or the photocopier, or even the printing press) know whether they could go ahead with developing their invention. It surely would not be difficult for them to imagine that somebody might hit upon the idea of marketing their device as a tool for infringement.
MGM's answer to this was pretty unsatisfying. They said that at the time the iPod was invented, it was clear that there were many perfectly lawful uses for it, such as ripping one's own CD and storing it in the iPod. This was a very interesting point for them to make, not least because I would wager that there are a substantial number of people on MGM's side of the case who don't think that example is one bit legal. But they've now conceded the contrary in open court, so if they actually win this case they'll be barred from challenging "ripping" in the future under the doctrine of judicial estoppel. In any event, though, MGM's iPod example did exactly what their proposed standard expressly doesn't do: it evaluated the legality of the invention based on the knowledge available to the inventor at the time, not from a post hoc perspective that asks how the invention is subsequently marketed or what business models later grow up around it.
I don't have much of a comment on the above quote, other than to wonder what Disney's Michael Eisner thinks about that line of argument. You'll recall Eisner's outrage over Apple's "Rip, Mix, Burn" ad campaign, in which he declared that Apple was suggesting to potential buyers "that they can create a theft if they buy this computer." (I always got a kick out of the "create a theft" line. Apple to consumers: "On an iMac, you can create your own DVDs with iMovie, and your own CDs with Garage Band. Or, you can create a theft with iTunes!")
At any rate, I do have something to say about the idiotic NYT editorial on the Grokster case, which Lessig rightly censured in his blog. This editorial goes off the rails in so many places, but I'll content myself with pointing out only one fallacy that underlies the NYT's entire argument. The NYT's editors assume that peer-to-peer file sharing is by necessity a content distribution system in which content creators cannot and will not be payed. It appears that the NYT thinks there's something inherent in peer-to-peer as a distribution mechanism that magically dictates that creators can never be compensated for any work distributed over p2p networks. This is, of course, complete and total baloney.
There have been any number of fantastic proposals floated for building artist compensation into p2p networks. One of the earliest and sanest was Napster's proposed settlement with the RIAA, and one of the most recent and cleverest is the Weed distribution system. The problem with all of these proposals, as I argued in an editorial on the original Napster proposal, is that none of them involve the RIAA getting paid because under such schemes the distribution channels that the RIAA controls and profits from are eliminated.
In short, the NYT's assumption that p2p distribution necessarily entails ripping off artists is evidence of a lack of imagination (and a lack of information) on the part of the NYT, and not evidence of an inherent flaw in p2p as a content distribution mechanism. So contrary to what the NYT's editors suggest, the Grokster case isn't protecting the livelihoods of artists from infantile information anarchists, but about allowing content creators and technology innovators the space and freedom to build a better, more equitable system.
On a final note, I recommend Dave Winer's comments on this case, and why it caused him to break with the EFF. I wasn't aware that the EFF has now taken a stand for the abolition of copyright, but if so then I too find that troubling, and for pretty much the same reasons as Winer. Note that I wouldn't go so far as to say that we "can't have a rational society without [copyright]," but I would say that it's here to stay and that on balance it's a positive thing when done right.
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