Against Intellectual Monopoly

the
DMCA to take down the speech of its critics. It has made DMCA claims against a
popular search engine, Google, to bully the engine to stop including in its index any
information about certain websites critical of the Church."
    The DMCA also allows large media corporations to issue subpoenas
with only cursory oversight by a court clerk. These subpoenas have been
used to identify individuals who are alleged to make copyrighted material
available on peer-to-peer networks and are the basis for various lawsuits
currently being brought by the RIAA against various thirteen-years-olds
and their grandmothers. Needless to say, this type of subpoena power is also easily abused: one pornography site has used the subpoena provision
in an effort to learn the identity of its customers so that it could blackmail
them.

    Finally, there is the Grokster case. A number of entertainment companies,
led by MGM, brought a lawsuit against the makers of a large array of software
products. Most important among them is Grokster, whose peer-to-peer
software is widely used for all kinds of file sharing, including, obviously, the
sharing of music and video files. MGM and its coconspirators argue that
because the software used by Grokster is used to do something unlawful,
Grokster should be directly held liable for such use. Imagine how this would
work in the automobile industry. Ford makes cars, cars are sometime used
to rob banks, and a lot more often to drive while drunk or intoxicated.
Because both these, and other activities carried out using cars, are unlawful,
Ford should be liable for such crimes. In its rulings, the courts have placed
a great deal of weight on intent - do the makers of peer-to-peer software
intend to encourage illegal use? Of course, we can raise the same issue
with respect to automobiles. In the United States the highest speed limit is
seventy-five miles per hour. Apparently, the only reason to build cars that
can go faster than that must be to break the law. So, should automobile
makers suffer the penalties every time that the speed limit is violated? It is
extremely dangerous to innovation and prosperity to hold the distributor
of a multipurpose tool liable for the infringements that may be committed
by end users of the tool.
    Until March 2005, MGM and its co-Torquemadas had not had much
luck with our court system; then, unfortunately, our Supreme Court was
brought into the picture, and things are now looking somewhat different. We quote from Wikipedia, which briefly and clearly summarizes the
facts:
    In April 2003, Los Angeles federal court judge, Stephen Wilson, ruled in favour of
Grokster and Streamcast ... against the Recording Industry Association of America
and the Motion Picture Industry and held that their file sharing software was not
illegal. On 20 August 2003, the decision was appealed by the RIAA and the MPPA.
On 17 August 2004, the United States Court of Appeals for the Ninth Circuit issued
a partial ruling supporting Grokster, holding "This appeal presents the question
of whether distributors of peer-to-peer file-sharing computer networking software
maybe held contributorilyor vicariously liable for copyright infringements by users.
Under the circumstances presented by this case, we conclude that the defendants
are not liable for contributory and vicarious copyright infringement and affirm the
district court's partial grant of summary judgment."
    In December 2004, the Supreme Court agreed to hear the case.... Oral arguments
were held for MGM v. Grokster on 29 March 2005, and in June 2005, the Court unanimously held that Grokster could indeed be sued for infringement for their
activities prior to the date of this judgement.16

    Notice, and it is not a minor detail, that the Supreme Court has ruled that
Grokster could be sued, not that it is to be held liable for the use of its
software. The legal details of the ruling are, in this case, quite relevant, and
interpreting, as someone did, the Supreme Court ruling as a final sentence
against innovative software producers and in favor of the big monopolies
is going a bit too far. More precisely, both sides were asking for a summary
decision. MGM and friends wanted the Supreme Court to say that peer-topeer applications were not protected by its previous decision in the Sony
Betamax case. Grokster and the other peer-to-peer producers, on the other
hand, were asking for a summary judgment saying that, because