• by Jim Meskauskas , March 31, 2005

Peer-to-peer computing has become the coolest application in the Internet Age since the browser itself. It has made real what the Internet promises to do and how it will deliver on those promises. No one could have foreseen just how immensely popular these applications would become. Looking back, it seems almost awkwardly obvious.

The recording industry, always late to the party with respect to new media (phonograph records from cylinders, records to tapes) were again tardy to the game of digital distribution of music. The movie industry, strangely enough, was also terribly clumsy about its attempts to deal with the digitization and decentralization of content distribution. But both industries seemed certain that as the 10,000-pound gorillas they could bide their time and the masses would wait.

Both industries were caught with their pants down, arrogance around the ankles. The reflex reaction, once their feet were untangled, was to sue.

A case is now before the United States Supreme Court, which will ostensibly determine the fate of P2P computing for years to come.

The case, with arguments heard yesterday, is M.G.M. v. Grokster. It is the culmination of five years of ongoing legal, technical, and rhetorical attacks against peer-to-peer file-sharing systems and their users by the music industry.

The Recording Industry Association of America (RIAA), representing the big record companies, has been waging a battle to stop the flow of illegally copied MP3s throughout the world. Napster, the first P2P darling and first target of the industry, was effectively neutered by the RIAA with state court rulings against it in February of 2001 and again in July of 2001.

It has always seemed strange to me that an industry that relies so heavily on the youth market to stay in existence would do something to so completely alienate that market. Authenticity and innovation has always been what attracts the youth to any cultural phenomenon, be it pop culture or subculture. To choose to do battle against millions and millions of music lovers seems an odd strategy for the music industry to adopt.

Fortunately for many of us, technology companies and the music industry have, in some places and on some levels, made peace and figured out a way to let those who want to experience music using the most modern methods do so without infringing on rights of ownership.

But the case now before the courts is whether or not the means by which some artistic content is accessed should be allowed to exist. LimeWire, Morpheus, Sharman Networks (makers of Kazaa) are targets because the methods of access to cultural products are not currently under the control of the businesses that the methods those tools enable exist on.

The Copyright Act of 1976 does not allow for the reproduction and redistribution of copyrighted works for commercial gain. It is less clear on the issue of non-commercial distribution. Sections 107 and 108 of the act will be what are used as a fulcrum for arguments being made by both sides, as these sections speak to reasonable use of noncommercial reproductions of copyrighted material.

What is interesting is that these sections (Sec. 108 (c), in particular) also address the issue of "if the existing format in which the work is stored has become obsolete." There are those who would argue that the record or tape cassette format fall under these auspices.

When tape cassette recorders found their way to the market, the music industry tried to fight the format by introducing the non-recordable format of the 8-track. The cassette won out because the people wanted it and because it worked better. The music industry had to finally give in to the cassette. Did the industry encounter more "piracy" with the advent of tape cassette recording? You bet. But most of it was legal piracy.

The law states that an individual can reproduce a copyrighted item and redistribute it as long as it is not for a commercial purpose. I can tape a song and give it to my friends; as long as I do not sell it, it is legal. With cassettes, sure, fewer albums were sold, but suddenly a whole lot of cassettes were sold, and for the first time the masses had access to portable prerecorded music.

Laurence Lessing, in his book "Free Culture" argues that large media companies are seeking to use both technology and the law to control the means of creativity. The media companies have argued that they are simply seeking to protect the rights of those who create cultural product to be fairly compensated for it. Lessing writes, "a free culture is not a culture without property, just as a free market is not a market in which everything is free."

Peer-to-peer is here to stay, whether we like it or not (and I would argue that most people do, indeed, like it). The question is whether or not the law can distinguish between motives of use; that is to say, am I using P2P for the explicit purpose of curtailing compensation for cultural product or to access cultural product for the purpose of cultural engagement? Are creators free to create without permission of the powerful or the creators of the past, as Lessing puts it, or will the law move in a direction that will always leave new artists seeking permission from those who have come before for the right to create? What are your thoughts?