None of this is to say that peer-to-peer systems like Grokster and Morpheus aren't allowing consumers to shoplift digitally, victimizing creative artists and their corporate distributors. But there are plenty of non- infringing uses for file-sharing systems, and the justices today will probably quibble about how much legitimate copying is enough to save the likes of Grokster. Millions of files, including books, videos and music, can legally be downloaded, and we are fortunate the photocopying machine wasn't banned long ago because it induced criminality. Hollywood claims that at least 90% of the file sharing is little more than blatant theft, but it overlooks the fact that many of the legitimate uses of replicating technologies become apparent only over time.
California's Civil War
The court cannot ignore these realities -- or the fact that the tech genie cannot be put back into the bottle -- while addressing the fact that millions of consumers around the world are illegally copying tens of millions of copyrighted files. It's worth noting that the lower courts haven't legalized unauthorized copying of protected materials. They simply applied the Betamax test and distinguished Grokster from Napster, the ill-fated file-sharing service that allowed users to illegally copy music on its own servers.
What the entertainment industry wants is veto power over technology with the potential to be used illegally. That's not in society's best interest. If those creating the peer-to-peer networks could be held liable for illegal activity, where do we draw the line? Why not go after the manufacturers of operating systems, hard drives and CD burners that can also play a role in illegal activity?
