When I was a kid, sharing music meant that I would lend a friend one of my 45 RPM records so he could listen to it at his house for a few days. If I was lucky, I would actually get it back eventually.
Sharing a movie meant that a group of friends and I would go down to the Pixie Theater in Edinburgh and watch a comedy flick together. We usually took in a Sunday matinee.
Those definitions of music sharing and movie sharing remained fairly constant until about six or seven years ago when the Internet gave the terms a whole new meaning. Today everybody knows that song swapping, movie sharing and peer-to-peer connections mean that copyrighted material is being downloaded from the Internet to someone’s personal computer.
Computer uses may be downloading them legally, meaning they have either purchased the rights to download and use them, or the material has been offered free to the public by the copyright holder. But the vast majority of file sharing, as it is generically called, is done illegally, without the copyright owner’s permission, through such online services as Kazaa, Grokster, and others.
A few years ago, the software company that started it all, Napster, lost a court battle over its song swapping service. Last week, the U.S. Supreme Court heard arguments in another case brought by the motion picture industry and the recording industry against two file sharing companies.
The difference is that, unlike Napster, neither of these companies have a centralized list or collection of illegal files. They are decentralized, meaning they have no control over who uses their services or what the users do with it. They can download legal copies of any type of file, or they can use the services to download illegal copies of music and movies.
The justices seemed divided during the hearing. Mostly, though, they questioned how an adverse ruling against the file sharing companies would curtail future research and development of new technologies. For example, one justice wondered what would have happened to the ubiquitous copy machine if companies such as Xerox had been prohibited from making them simply because they can be used to make illegal copies of documents or publications.
Another justice wondered why the entertainment industry isn’t suing Apple Computers over the iPod, which can also be used to download illegal copies of music files. Most iPod users download songs legally from Apple’s Web site. But they could also use it to play illegally downloaded music.
Still, some of the justices were concerned that the file sharing companies were making big bucks through advertising revenue off people’s illegal activity, even though they have no control over it.
The High Court will decide by June whether file sharing services can be held liable for the illegal activity of their users. Lower courts have always sided with the file sharing companies, citing earlier Supreme Court cases such as the one brought against Sony years ago for selling VCRs.
Video recorders can also be used to make illegal copies of copyrighted material, but the High Court ruled that just because something can be used for illegal purposes doesn’t mean it should be banned if there are also legitimate uses.
The same reasoning should apply in this case. If fairness and logic prevail, the recording and motion picture industries will lose their appeal.