Core copyright principles and the threat to innovation

Gigi Sohn, president of Public Knowledge, has a commentary in News.com: Getting real about the Grokster case.

Over the next few months, the Supreme Court and--likely--Congress will resume a debate over rules that could determine whether consumers will continue to enjoy the benefits of many of the gadgets CNET covers.

The debate is specifically about what kind of legal liability--if any--technology manufacturers, financiers, Internet service providers, journalists and others should have if their actions "induce" another to commit copyright infringement. ...

Congressional action this year will largely be shaped by what the Supreme Court does in the pending case involving Grokster, the peer-to-peer software used by millions. While the case may appear to be simply about illegal file trading, its implications are far deeper.

This case will, in part, decide whether the court's 1984 Sony decision will survive. That case found that the sale of copying technologies, like the VCR, is legal as long as there are "substantial noninfringing uses" for it. That decision led not only to an explosion of new consumer electronics products, but it also helped usher in the computer revolution, opening up a whole new vista of choices for consumers. ...

Sohn lays out these core principles in the public policy battles:

The first principle is that manufacturers of lawful technologies should not be punished for the wrongdoing of individuals who use those technologies. ...

The second principle is that infringement is wrong and that current copyright laws should be enforced against infringers. That is why we have, in most cases, supported civil lawsuits by copyright holders.

The third principle is that because copyright law should benefit the public with new creativity, the file-sharing debate must also focus on viable compensation mechanisms for artists.

Well said.

Sohn's commentary goes hand in hand with a related piece by tech pioneer and Dallas Mavs owner Mark Cuban: Grokster and America's future. Writes Cuban:

Things started to get a little shaky back in 1998. In October of that year, the Digital Millennium Copyright Act was passed. The DMCA was basically a law that set a very unnerving precedent--that the government would do what it could to protect the interests of content owners at the expense of technological development.

By itself, the DMCA didn't kill technological innovation. At the time it passed, the DMCA was more a nuisance than anything else. Digital content wasn't all that prevalent, and there certainly wasn't much money in it. Not many people cared that our tax dollars were being spent to make sure that your Internet radio station never played more than three songs in a row from the same artist. Or that it became illegal to have a 24-hours-a-day station dedicated to the Beatles (or any other artist).

In 1998, few people were buying DVDs. It was easy to buy a VHS tape and make a second copy for your own use. The DMCA rarely touched home. In 2005, it's a whole different ball game.

You know those scratched DVDs you own? How nice it would have been to be able to make a copy first, knowing that the kids were going to ruin them at some point. But you can't. It's illegal to make software that allows you to make backup copies. You paid a lot of money for your DVDs. The movie industry has made billions upon billions of dollars from DVDs. Many movies make more from DVDs than from theatrical release. They get your hard-earned money, and they make it illegal for you to make a copy to keep just in case your DVD gets scratched. That's wrong.

It's the law of unintended consequences. Few people knew that DVDs would basically replace VHS in our homes. Few had any idea that DVDs would regularly get scratched and rendered useless. No one had any idea that trying to make a protective backup of that DVD would be illegal. It was perfectly legal to do it with VHS tapes.

The law of unintended consequences is never repealed. It goes on forever. Next month, a case entitled MGM v. Grokster will go before the U.S. Supreme Court. If this case goes the wrong way, that law of unintended consequences could put a hurt on us in the future. ...

The next 15 years will have just as many new devices that we can't imagine today. But what if they all became illegal?

We are living in a world where information is becoming 100 percent digital. Of all the digital information across the world that is being created and exchanged, what percent is comprised of music and movies? What percentage of that is owned by Hollywood and the big music companies?

Think about all the home movies we are creating and saving on our computers. All the digital pictures of our families and friends. All the personal music created at home. All the corporate data and presentations. All the books, software, newsletters, newspapers, discussion forums, blogs, Web sites and e-mails that are created and saved digitally. How big a percentage of that could music and movies make up--one-tenth of 1 percent? At most?

Every single one of these items can benefit from the distribution efficiencies created by peer-to-peer networks. Every person and company in this country that wants to exchange digital data can benefit from peer-to-peer technologies. Just because the uses aren't prevalent or obvious to some today doesn't mean they won't be two or five years down the road.

In the MGM v. Grokster case, the fewer than 50 companies who control less than 1 percent of all digital information are trying to take control of innovation in the technology industry and pry it away from the rest of us. Everything our imagination creates and touches that can be made digital is at risk if Grokster loses.

Emphasis added.