This week the Supreme Court received an avalanche of friend-of-the-court filings for its hearing of the Grokster case, which pits a peer-to-peer file-trading technology against MGM. Yet the outpouring of concern in the case only hints at the true number of interested parties.
Two decades ago, when the famous Betamax case set a precedent that protected the VCR, it was consumers versus the studios and record labels. But now there's an equally important third party: the creative amateur -- people like you and me who not only consume but also produce content. And they're on the side of Grokster and the extraordinary power of the new distribution networks.
As anyone who's played with the software now shipped with any new PC or Mac knows, the same tools that allow you to easily copy and share music and video also allow you to make your own. As a result, we're seeing the rise of a peer-production generation, such as teenagers using Apple's Garageband to create or remix their own music and snowboarders distributing highlight videos of their tricks to, yes, bloggers like me.
Once upon a time, the ability to manufacture and distribute media and entertainment was the domain of professionals alone. Only pros could harness presses, airwaves, trucks, warehouses; only pros could command shelf space in the media and entertainment markets. Videotape and audiotape were the first cracks in this wall, giving consumers the power to do a weak form of manufacturing and distribution. But digital technology collapsed the wall. Using no more than my laptop and any one of a hundred cheap or free online services, I can be recording studio, record label, music store and marketing machine.
The Amazons, EBays and iTunes of the world have broken through the distribution bottlenecks. Increasingly, their endless aisles of shelf space hold not just the manufactured hits of the traditional media and entertainment powers but also the remarkably diverse output of countless niche producers. Each may not sell a lot, but together they represent a cultural force that can rival the mass market.
And they are not just in it for the immediate sales. Britney Spears may consider file-trading a threat to her royalty stream, but there are other musicians who would be delighted to find they had become a peer-to-peer hit. Getting heard is the challenge for most bands; once they have fans, there are lots of ways to make a living off them, from touring to T-shirts to CD sales. Even legends like David Byrne are on their side. As he put it in a National Public Radio interview, "Most artists see nothing from record sales -- it's not an evil conspiracy, it's just the way the accounting works. So as far as the artist goes -- who cares?"
What's at stake is the realm of ideas, sliced and diced a million ways. The peer-to-peer music sites are the closest current approximation to the celestial jukebox we all want. Kazaa, for instance, has 25 million unique tracks, dwarfing iTunes' measly 1 million. BitTorrent has more videos than Blockbuster. Much of it is pirated, to be sure, but a significant portion of it -- videogame highlights, say -- was never intended to be moneymaking in the first place. The problem is that we don't know how to stop the piracy without chilling the creativity.
The main flaw in the case against Grokster is that the action attempts to criminalize a technology rather than a specific use. It also fails to distinguish between commercial content and noncommercial content. Restricting these powerful new distribution tools to fight piracy would hobble the new emerging creative class too. The potential collateral damage to legitimate users is much higher than in the Betamax case.
The Supreme Court should recognize that there is a silent majority in this case, made up not of pirates or the pop stars but the millions of individual talents who risk getting caught in the crossfire.