agree: At oral argument, several asked ques-
tions about how ruling for MGM might pre-
vent companies from inventing products like
the iPod.
Owning Congress
Legitimate uses evolving
If the Supreme Court decides to stick with
the Sony standard in Grokster, the justices will
have to decide whether file-sharing services
have significant, legitimate uses. While
Napster’s lawyers failed to make the case in
court that the service was being used by
almost anyone for legal purposes, newer file-
sharing technologies have started to find fully
legal uses. One of the newest, and the perhaps
the best developed to date, peer-to-peer pro-
gram, BitTorrent, is used by many to down-
load legal material. Etree runs a site
(http://bt.etree.org) that offers BitTorrent
downloads of concert recordings of “taper-
friendly” bands who have explicitly given fans
permission to record their performances and to
freely distribute the tapes. With the BitTorrent
software and a high-speed connection, you can
go to Etree and download a super-high quality
recording of a 1978 Grateful Dead concert at
Mac Court in just an hour or two.
“Digital rights” activist groups such as the
Electronic Frontier Foundation are strong
advocates for the legality of file-sharing pro-
grams. Fred von Lohmann, an EFF attorney,
fears that if Grokster is decided in favor of the
movie studios, the result will be “the installa-
tion of Hollywood lawyers in every technolo-
gy company’s engineering meetings” and a
serious harm to innovation. The justices might
Professor Keith Aoki, the UO School of
Law’s intellectual property expert, thinks that
However, he isn’t optimistic about the cur-
rent and future state of intellectual property.
“Congress is in the pocket of the recording
industry,” he says. “In 1998, they passed the
Digital Millennium Copyright Act which was
an incredibly far-reaching extension of copy-
right laws. And now, just a few years later, the
recording and entertainment industries are
demanding even stronger copyright protec-
Law student
Alex Frix got in trouble
for downloading.
the Supreme Court might actually vote to
uphold the Ninth Circuit, allowing Grokster and
others to keep distributing their software. He
notes that even some of the most conservative
justices have shown a preference for the free
market over strong intellectual property rights.
DANIEL EPPS
started watching.” Now she watches the show
weekly when it airs, enlarging the market for
UPN’s advertisers. Are entertainment compa-
nies are now making the same mistake they
made 21 years ago?
tions, and they may get them.” (Just days after
Aoki’s interview, Congress passed stiff crimi-
nal penalties for those who leak pre-release
versions of records over the Internet.)
Aoki notes that recently a proposal to
allow companies to send signals “frying” the
hard drives of copyright infringers was given
serious consideration in the U.S. House. He
warns that even if the Supreme Court rules
that the creators of non-centralized, peer-to-
peer file sharing services are not liable under
current laws, it’s possible that Congress will
simply create a new kind of liability.
“Inducement liability,” as it has been named
by its proponents, would make inventors of
programs like Grokster and KaZaA responsi-
ble for the acts of those who use their inven-
tions, even if indirect and unintended.
Congress’ willingness to create new kinds
of liability at the request of the entertainment
industry is troubling . Through numerous incre-
mental changes, American copyright law has
quietly and quickly undergone radical exten-
sion over the last few decades. Copyrights,
which at one point in American history lasted
only 28 years, have been repeatedly increased
by Congress; as of 1998, they can last as much
as the life of the author plus 95 years.
Critics point out that for the most part the
beneficiaries of such long copyright exten-
sions are almost all corporations who own
wildly successful franchises. They are quick to
point out that Disney was about to face the
copyright expiration of some of the earliest
Mickey Mouse cartoons before the passage of
the most recent extension, for which the com-
pany lobbied aggressively. Many think
Congress’ concern over downloading has
more to do with corporate welfare than a sense
of justice. “If we’re going to punish compa-
nies who make products with illegal or dan-
gerous uses, why isn’t Congress going after
the gun industry, the alcohol industry or the
car industry as well?” Aoki asks.
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