And Justice for Grokster!

By the time you read this, the Supreme Court will probably have handed down its decision on the Grokster case. Most of the pundits say that the court will let the 1984 Betamax decision stand and single out Grokster's particular business model as illegal or semi-legal with some restrictions. This is considered by most to be the safe, middle ground.

No matter how this case turns out, there are people who are going to be extremely unhappy. If the court decides that peer-to-peer networks are inherently illegal, we'll have unhappy techno-people (who will not be stopped by this or any other means, but I'm getting ahead of myself). If the court decides that peer-to-peer networks are inherently legal, the recorded music, video, and movie industries are going to go insane (and take a huge hit). If the court decides on the pundit's choice, then nothing will change... or will it?

I'm writing this in advance of the decision, so I don't want to spend time trying to predict the future. What I want you to think about - and write to me about - is the morality and ethics of the following:

Imagine you own a flea market. When vendors check in, the business checks the validity of the vendor's credit cards (to ensure that your booth fees are collectable) and do a background check to make sure that they do not have criminal records.

When the authorities come to arrest several of the vendors who are buying and selling their illegal wares at your flea market, your defense is, "We check every vendor's credit and make sure they do not have a criminal record; our business policies do not include checking their merchandise. Therefore, we are not responsible for what the participants buy, sell, or trade."

This hypothetical flea market is a fairly good analogy to a peer-to-peer network. Are wearing blinders or creating a set of business rules that encourage ignorance a good defense? Is it morally or ethically right? Is it legal? Can our society realistically hold merchants in a free market to a standard that they themselves would not adhere to?

No matter how the Supreme Court decides Grokster, we need to understand and answer these questions. In 1960, if you wanted to own a piece of music that you didn't pay for, you had to be a shoplifter, burglar, robber, or a thief. Today, there's nothing physical to shoplift and it seems like morality and ethics have not stood the test of time. Since we cannot put the toothpaste back in the tube, what's the answer? You tell me.

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