A VERY DANGEROUS SUPREMES RERUN

According to Cary Sherman and Dan Glickman, the last thing that the record labels (for whom Sherman lobbies) and movie studios (for whom Glickman lobbies) want is to stifle the development of awesome new gadgets that make life worth living in couch-potato land. They are taking their case--MGM v. Grokster--to the U.S. Supreme Court this week because those darned file-sharing services like Grokster, Kazaa and Morpheus make it easy for millions of people to steal movies and songs over the Internet. But the outcome may very well affect what tools all of us might one day use to hypercharge our entertainment. Specifically, do we want to enjoy unfettered the fruits of the digital revolution--or will Hollywood, despite its protestations, put on the brakes?

The case is centered around the question of whether those theft-enabling file-sharing services are legal. The lower courts have ruled that they are. This was in keeping with the 1984 Sony Betamax case, when the Supremes gave their blessing to new technologies that happen to expedite copyright infringement--as long as there are substantial legal uses for the technology as well. (The peer-to-peer system used by Grokster et al. allows speedy sharing of noninfringing files, too.) Now the Betamax decision, which sprung the VCR from criminality to your living room, may well be rewound by the court.

That's the fear of the consumer-electronics and computer industries, and the public-interest groups that are holding their noses while supporting the file-sharing serv-ices. "If I had the luxury to choose a [test case], I'd pick something clean-cut and pure," says Fred von Lohmann, an Electronic Frontier Foundation attorney. But, von Lohmann says, if the case is lost, then Hollywood will, in effect, have a veto over new technologies. Even the threat of litigation might be enough to dry up funding for a promising new entertainment scheme. "The digital revolution will be stopped in its tracks," says Gary Shapiro, head of the Consumer Electronics Association.

Content moguls sneer at such rhetoric; former solicitor general Ted Olson, mouthpiecing for Hollywood, calls it the "sky-is-falling defense." But history tells us that Chicken Little is more likely found in Malibu than Mountain View. Flash-back to the Betamax case. Hollywood predicted that the video recorder would put an end to its livelihood. The entertainment giants sued Sony not only because of the VCR's ability to make dupes of copyrighted programs but because of its key function that allowed people to tape TV shows for later viewing. Only after the Supreme Court chucked that position did studios begin selling prerecorded movies. And now, home video is the industry's biggest moneymaker.

Hollywood says that this case is different--unlike the VCR, the file-sharing services like Grokster are designed to profit off their users' theft of songs and movies. But even if the Groksters of the world went away, the open nature of the Internet would make it easy for those users to use other tools to do the same thing. How far would Hollywood go to stop them? If the Supreme Court reverses itself on Betamax, we may find out.

Without that prior ruling, "we definitely wouldn't have had an iPod," says Shapiro. "Nor would we have had video recorders, recordable CDs and DVDs and probably not the computer itself--it's a massive piracy device! In fact, the Internet wouldn't exist if Hollywood had its way."

Fortunately, it's hard to imagine a scenario where the Internet fades to black. But it's not a stretch to outline a scene where the next iPod fails to get greenlighted because that 1984 ruling no longer applies. Let's hope the Men (and Women) in Black don't let that happen.

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