On Tuesday, Nov. 8, Grokster shut down its file-sharing client as part of a lawsuit settlement with the two giant Internet cops, the Recording Industry Association of America and the Motion Picture Association of America. Groker's decision comes after the U.S. Supreme Court refused to hear its appeal from the lower courts. While it did not directly commit a crime, it was charged with promoting illegal activities, i.e., supporting a forum that allows people to commit crime. Because the primary use of their network was for illicit activities, the Supreme Court essentially held that it was a tacit participant in theft. The final word, however, will not come from the Supreme Court or the large industries. No. In this battle only the consumers can triumph. The abundance of such decentralized networks makes any possible enforcement of the current laws practically impossible. While Grokster has shut down, a myriad of other networks exist and programmers are busily creating others. The eDonkey, FastTrack and Gnutella networks, DirectConnect and the recently popularized torrent technology are just a few examples of how the expression of the public desire for sharing files on the Internet has supported the proliferation of new technologies.
Enforcement through the legal system has not achieved the desired effect. The music and movie industries have decided to target the most powerless of America's consumers: poor college students who simply seek to procrastinate while enjoying their favorite TV show reruns. The little money that these college students can afford to pay the claimants cannot possibly compensate the music artists or Hollywood. Neither does litigation provide closure, because no number of convictions will cut public demand; at most, only a chilling effect can be achieved. The proliferation of file sharing technologies is unstoppable. For each one that shuts down, a dozen more spring up. The breakup of the first successful file sharing network, Napster, heralded the rise of the file sharing phenomenon; only after this network became pay-per-view did a myriad alternatives arise.
While the law is unenforceable, that fact alone does not legitimize dissent. I believe, however, that the extension of private property rights to online content is a weak one. We are allowed to enter into a Barnes and Noble, and other bookstores, and freely browse the available material, most of which is under copyright. In my hometown, many gather in a local Barnes and Noble and read entire books without risking lawsuits by Penguin Publishers or Random House. On the surface, this example differs from file sharing because the latter actually results in an illegal creation of another instance of the author's work.
One might argue that, although people are allowed to browse others' copies of legally purchased material, they are not allowed to sit in a bookstore and copy the entire contents of a book. This distinction, however, should not hold for electronically distributed content. Not only is the lifetime of a downloaded movie much shorter than of a store-bought DVD or VHS cassette, but, more importantly, the above distinction becomes moot if taken seriously. By the same argument, anyone can illegally "play" songs in his or her head, since once listened to several times, a person's memory is free to recreate the music on demand.
The only real threshold of legality in this matter should be distinguished by the right of access. Once access is purchased and granted, repeat access should be allowed free of charge. (If not, then regulations on memory would also hold.)
And it is this very distinction of access that our society has become so schizophrenic about, especially with the advent of recent technology. We are allowed access to copyrighted material in bookstores, but we attempt to prohibit that access online. Popular demand for free access to information is slowly washing away this distinction, as it should.
In response, our laws, not our behavior, should change. And, not surprisingly, some companies are already adapting. iTunes offers music downloads at 99 cents per song. Recently, NBC and CBS have leaned up to offer their own TV shows for download at just 99 cents an episode. Hollywood should follow suit with movies and the publishing houses with books. Intellectual property laws are designed to protect the creations of individuals from unfair use. Listening to music in shops and reading books in bookstores does not fall under the category of unfair use; neither should listening to music or watching shows online.
