The Grokster decision — a ruling in Federal District Court on Friday that peer-to-peer file-trading services Grokster and Streamcast/Morpheus are not illegal — is being hailed as a victory for the computer user over the forces of copyright uber alles. And of course it is. In recognizing that, thanks to the precedent of the Betamax decision of the 1980s, the government should not outlaw a technology that has legitimate and legal uses even if some users employ it toward illegal ends, the court made a critically important distinction — one that every sophisticated user and software developer understands, but one that the so-called “intellectual property lobby” is determined to blur as it fights its own customers to preserve a dying business model. The court also seems to have accepted the essential difference between Napster’s central-server model of file-trading, which put the service in a middleman position that made it vulnerable to legal attack, and the new file-trading networks, whose true “peer-to-peer” architecture means that the software’s providers are not in a position to regulate what sorts of files users exchange. (Lawrence Lessig credits the Electronic Frontier Foundation for much of the hard lifting in the case.)
Still, it’s hardly time to cheer yet. Thanks to decades of Republican appointments, the federal courts of appeals tend to be extremely friendly to corporate interests. In theory the conservative judges are supposed to be believers in limiting the power of government — at least that’s the libertarian basis of much of conservative legal thought. So you’d think that they’d resist the music lobby’s infringements on individual freedom. In practice, however, it seems that many of these judges are actually believers in not limiting the powers of business — and they sway back and forth between laissez-faire logic and deference to government prerogatives depending on which favors the corporate side in any particular case.
It’s for analysts more legally trained than I am to guess at how soundly entrenched in the law the district court decision was, and how far a potentially hostile appellate court would have to dig in order to overturn it. Something tells me the appellate court may prove tough on the file-sharers. On the other hand, since the case was in Los Angeles, it will go before the Ninth Circuit, which has the reputation for making maverick moves — and for being regularly overturned by the Supreme Court, where I imagine all of this will end up.
Oh, right, the Supreme Court is even more dominated by conservatives than the appeals level.
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