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Published: Sunday, 4/10/2005

The pirates of Grokster

Copyright law, based on 18th century constitutional language, allows authors and inventors to be granted for a limited time the exclusive rights to their work in order to "promote the progress of science and useful arts." Despite the musty background of this provision, copyright law is a fast-moving field.

The Supreme Court heard arguments recently in a case that pits the creators of songs, films, and other artistic works, not necessarily all of them being "useful," against a company called Grokster whose product makes it easier for consumers to download copyrighted material without paying for it.

The crux of the matter was summed up by technologically challenged Justice David Souter, who writes his opinions in long-hand. "I know perfectly well that I can buy a CD and put it on my iPod," he said, "but I also know that if I can get music without buying it, I'm going to do it."

That's the common-sense view of the situation, given American consumers' view that they have the inalienable right to pirate anything on the Internet, even if they would be shocked by the notion of stealing a CD from a store. The artistic industry says it loses more than 2.6 billion songs, movies, and other digital files each month and called Grokster "a gigantic engine of infringement."

The electronic industry relies on a 1984 case in which Sony's Betamax machine was let off the copyright hook because the court found there was "substantial noninfringing uses."

So for more than two decades people have freely taped programs off TV, on grounds that they were merely time-shifting entertainment to be viewed at a more convenient hour. Grokster says that a heavy-handed application of copyright law would quash innovation in the industry. So, is Grokster's business plan designed to give consumers more choices or is it the vehicle of pirating that the artistic industries deem it to be?

No matter what the court does, it is unlikely to settle the matter. The lower courts, without trial, ruled for Grokster.

Congress might try to cobble together some kind of new law, but reform in the copyright arena almost invariably lags behind innovation. The Betamax or Sony case now seems too outmoded to serve as a useful precedent. Perhaps the two titans could divide the profits, leaving the consumers out of the litigation (and possibly lowering the cost of CDs and DVDs).

As long as file-sharing consumers are being sued, the entertainment industry's lawsuits have a David and Goliath cast to them, and who wants Goliath to win? Justice Souter's homespun wisdom about taking things for free whenever possible is difficult to dispute.

In any case, global piracy of American intellectual property runs rampant, to the detriment of the U.S. balance of trade. The creative industry should press much harder for U.S. trade sanctions on countries that turn a blind eye toward pirating.

This issue, as the king of Siam lamented in The King and I, "is a puzzlement," although not to the intellectual-property pirates who thrive in many Asian countries.

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