The Stupids Visit the Supreme Court By George Ziemann 26 Jan 05 -- As the battle lines are drawn in the Supreme Court over MGM Studios Inc., et al v. Grokster Ltd., et al, No. 04-480, it appears as if anyone that could afford a lawyer has filed a brief, including some who evidently decided that this was the biggest game in town this spring and they'd like to use the opportunity to spread the fruit of their limited intellect. The two primary parties here are the RIAA/MPAA (movie studios and record labels), pitted against the entire peer-to-peer file-sharing premise, with Grokster being held as the example (since they can't legally get to Kazaa). The biggest dogs showing up to bark were the tech companies -- Microsoft, Apple, Google, Yahoo. These guys came in to say that Grokster is bad and should be punished, as long as it doesn't implicate their computers, operating systems and their built-in file-sharing mechanisms (like Internet browsers). We can file share without Kazaa or Grokster, thanks to Apple and Microsoft. The Google and Yahoo fear is that simply telling people where things are will become illegal in the process, if not the entire Internet, which is based upon the very premise of file-sharing. Secondary big dogs were Tom Jones and Avril Lavigne, as well as the Songwriters' Guild, to dropped in to share with the Supreme Court the vision that they will make more money if people can't hear their music for free. Just like those damned radio stations in 1922, not to mention player pianos, audio tape, cassettes and those evil VCRs. Enter The Stupids In addition to politicians paid directly by the RIAA (Orrin Hatch, Pat Leahy), Ted Olson, Ken Starr and Justice Ginsburg's daughter all showed up to pay tribute to the entertainment gods, perhaps expecting a movie of the week in return or at least a walk-on role in George Clooney's next TV series. File-sharing networks "have engaged in, for profit, and on a massive and widespread basis, the greatest ongoing theft of intellectual property that the world has ever seen," Olson said. Olson apparently overlooked the instructions from the lower court (the decision of which, in favor of Grokster, is the basis of the current appeal) that copyright infringement is not theft and using that terminology, along with "pirates," merely avoids the main question, being why this case is any different than the Betamax case. The Boston Strangler analogy didn't work then and it won't work now. The "I've been robbed" plea doesn't carry a lot of weight when you still have the property. A little more from the Post article: Representing the Recording Industry Association of America and the Motion Picture Association of America, attorney Donald B. Verrilli Jr. said that the 9th Circuit misinterpreted the Sony decision. The 9th Circuit told the RIAA to show why p2p is different than Betamax. The RIAA didn't even try, preferring to cast everyone on the planet in the role of pirates and thieves. He said that if a product or service is primarily used for illegal purposes, the provider should be held accountable. Like gun and ski mask manufacturers? The makers of Sudafed? Cigarette rolling papers? Ziplock bags? The CIA? Every getaway car has tires. Should we outlaw tires? Roads? Playing cards? Dice? Moreover, he said, the courts also should be able to hold providers responsible if they are able to take steps to halt the illegal behavior, which Verrilli said the file-sharing networks could accomplish. They keep saying that, but it does not make it a fact. From a programming point of view, there has to be a difference between the RIAA music and the music the rest of us offer, which is entirely legal to share. If anyone knows what this magic factor is that will enable accurate filtering, they haven't stepped forward to share it with anyone yet. Verrilli said that Grokster and other file-sharing networks are profiting from the illegal acts of their users by selling advertising on their sites. Using music to draw advertising dollars? Like radio? Or MTV? Well, it would be, but only if the labels had to pay to get their songs listened to. And here's a thought... Have the record labels ever thought about opening a website and selling advertising? They've already got the music and they seem to be the only ones that can't figure out how to cash in on it. With all of this logical ammunition against the RIAA's tenuous legal position, did Grokster's attorney address the RIAA propaganda with facts? Hell, no. He leaned on "the peer-to-peer genie is out of the bottle," which proved beyond a doubt that he's just as incapable of intelligent fact-based debate as the RIAA legal team. Pirates and genies. As Bugs Bunny would say, "What a bunch of maroons!" Although it would go against every Supreme Court decision concerning the music industry for the past 100 years or so, I would love to see peer-to-peer outlawed. It's relatively useless for the independents because of all of the RIAA crap in the way. For the record labels, it's the only way to reach the kids who don't turn on the radio because they're using their computers instead. That's why new songs get on p2p before the CD shows up in the record stores. It's not 12-year-olds posting unreleased material -- it's the labels and the studios. Time and time again, the Supreme Court has protected the entertainment industry against their own inability to see beyond the next quarterly income statement. So let the RIAA win. Let them disconnect their entire target demographic from access, all at once. They deserve the retail retribution which would surely follow. The RIAA's memory is so short that they have already forgotten that shutting down Napster is what started their sales decline. Let them shut down Grokster. Kazaa, too. All of them. Get that consumer goodwill rolling downhill faster than ever. That'll solve all their problems, in a Bizarro World kind of way.