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Last Updated: Friday, 1 April 2005, 11:08 GMT 12:08 UK
Listen to the Supremes with care
The Supremes
Listen to the Supremes - be careful if you use a P2P network to do so
The current file-sharing legal battle in the US could well shape consumer technologies used around the world for the next decade, argues technology analyst Bill Thompson.

It would be nice to think that the argument currently taking place in front of the US Supreme Court over whether the Grokster and Morpheus peer-to-peer (P2P) network services are unlawful was just another piece of legal theatre that did not really concern us over here in Europe.

Sadly, history tells us we need to pay more attention to the outcome of the case than we might like to.

The outcome could well shape the consumer technologies used around the world for the next decade.

The court is being asked to decide whether Grokster and similar services are breaking the law because their networks can be used to distribute unlicensed content, like songs or movies.

What you do with it

Until now, P2P networks have relied on a decision from 1984 that protected Sony from being sued for producing video recorders.

The argument back then was that just because a technology could be used for copyright-infringing purposes that did not make it unlawful as long as there were also legitimate uses.

But the movie and music industries want to abandon this principle, and are arguing that courts should decide on a case-by-case basis.

This would let them sue Grokster, whose P2P network can be used for both licensed and unlicensed copying, but allow them to leave Apple alone even though iPods can do just the same.

Technology analyst Bill Thompson
If banks, venture capitalists and company directors are worried about being sued for marketing a cool toy that can be used in unanticipated but illegal ways then they will play safe
The decision matters over here even though the case only concerns US law.

It matters in part because the US has a lot of influence over international organisations that write the wide-ranging treaties covering things like global trade and intellectual property law.

So if the Supremes go against Grokster it will not be long before WIPO, the World Intellectual Property Organisation, proposes extending the principle into international law.

But mostly it matters because the US is still the powerhouse of technological innovation.

If banks, venture capitalists and company directors are worried about being sued for marketing a cool toy that can be used in unanticipated but illegal ways then they will play safe.

The inventiveness that created the TiVo hard drive recorder, the MP3 player, and the dual-layer DVD writer will go into developing expensive games for locked-down consoles, new forms of keyword advertising for search engines and better ways around spam filters, or other equally useless activities.

Pro-technology protesters
Pro-technologies argue the case will impact innovation
In 10 years' time this may not matter much because China, India and Brazil will be leading the next wave of technological innovation, based around open source development and their own manufacturing capacity.

But they are not there yet.

While a decision to allow the entertainment industry to choke innovation in order to sustain its old business model in an online world could speed up this process, none of the aspirant players is yet ready to drive things forward.

Blogs bothered

It has certainly been entertaining to see the blog postings, Flickr feeds and other online activity coming from the copyfighters who queued all night to get one of the few places in the same room as the Justices while they consider the arguments.

And so far it seems to be going Grokster's way, with questions focusing on the impact on innovation and the degree of uncertainty that a change in the law would bring.

So I am optimistic about the final outcome, at least this time around.

This weekend I am speaking at the Edinburgh Science Festival, along with Lawrence Lessig, the Stanford law professor who has done so much to challenge the extremist view of copyright law put forward by large entertainment companies.

We will be arguing over the limits of the law, about how initiatives like the Creative Commons can make a difference and about how we can ensure that new technologies enhance freedom rather than simply give established players more control.

Lessig is one of the most prominent defenders of a more flexible approach to copyright.

It is one which would not make criminals of anyone who writes software that allows easy file sharing or simpler copying, and an outspoken opponent of a more restrictive law.

But he is a lawyer and an academic, not the CEO of a large software house whose business will be destroyed if the decision goes against Grokster.

Musicians protest in the US
Musicians are worried that P2P always means stolen music
It has been really disappointing to see how little support the P2P networks have got from the computing industry, even though they share a common cause.

Intel has filed a supporting statement with the court: the rest have been silent.

A few weeks ago, the Danish press reported that Microsoft's Bill Gates might re-consider the presence its research labs in Denmark if Europe did not allow software patenting, because he believes patents are vital to protect Microsoft's commercial interests.

The story has been dismissed outright by Microsoft. But it seems a reasonable position given how important patents are to Microsoft's strategy.

I may disagree with him but at least he is being consistent.

It is just a shame that he is not sitting in Congress with other representatives of the technology industry telling the politicians that giving the entertainment cartel the power to limit technological innovation will fatally undermine the US computing industry.

Then they might start to listen.


Bill Thompson is a regular commentator on the BBC World Service programme Go Digital.




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