Supreme Court

The case before the Supreme Court does not pertain to whether the actual act of file sharing is illegal. Let’s accept for now that when you or I grab a copy of the newest Aimee Mann track from Kazaa or LimeWire, we are committing intellectual-property piracy, stealing royalties from starving artists, and threatening the entire economic basis of the music industry. Personally, I enjoy supporting the artists I like by purchasing their records on iTunes, and I especially savor doing so after I have heard a free sample of their music over the Net. But that’s an entirely separate issue from what’s at stake in this case. MGM vs. Grokster deals with whether the creators of a technology are responsible for how it used. It’s not an understatement to say that the case could influence the future of the Internet.

This is why the “secondary liability” charge makes a lot of folks, particularly those in the computer, consumer electronics and telecom industries, very nervous. A decision in favor of the plaintiffs would represent a reversal of the precedent set 20 years ago in the famous “Sony-Betamax” case, which held that Sony was not liable for any copyright abuses likely to be perpetrated by owners of VCRs because there were “substantial noninfringing” uses of the product. In other words, because the VCR could be used for perfectly legitimate purposes, like watching a rented movie, it was OK for Sony to sell it, even if some people were going to use it to tape copyrighted television shows.

The defendants in Grokster say that because P2P networks can also be used for legal purposes — such as distributing public domain content or anything for which the copyright holder has granted permission — they should enjoy the same protection. Last year, the Ninth Circuit Court of Appeals agreed, a decision that surprised many observers of the long-running war between file sharers and the entertainment industry. Over the past decade, the entertainment industry has been winning most of its copyright battles, both in court and in Congress.

No one knows which way the Supreme Court will go, but the tech industry fears disaster: If the creators of programs that enable sharing over the Internet are liable for what people do with the software, then the manufacturers of any devices that enable copying could also be at risk. So everyone on the trail that leads from you to a given digital file is in danger — the computer manufacturer, the CD-burner manufacturer, the audio-editing software writer, the Internet service provider and the telecom company.

I’m not a particularly paranoid person. But the entertainment industry did do everything it could to stop me from owning VCRs and MP3 players. It drives record company executives nuts that I can plug a newly purchased compact disc into my computer and rip the music on it to my hard drive in seconds. They are constantly experimenting with ways to stop that, and a ruling in their favor in MGM vs. Grokster, even if ostensibly aimed at P2P networks, could give them the legal authority to be even more aggressive than they already are.

So I decided to rip my vinyl in symbolic support of the right to do with my music what I like. But a funny thing happened on my way to the iTunes library.

I haven’t owned a working turntable in 15 years. My record albums have moved between three houses in that time, packed away in crates gathering dust in the basement. I’ve gone years without even thinking of them. But after returning home from a store that specialized in refurbished stereo equipment with a beautiful Technics record player, I retrieved the crates from their hiding places and began spreading albums across my dining room table.

And I started to freak out a little bit. All those albums! All that personal history laid out before me. That “Ziggy Stardust” record — I remembered playing it for the first girl I had a crush on. That Skynyrd album — would I ever have owned it if I hadn’t been a teenager in north Florida? “Entertainment,” by the Gang of Four — just a glimpse of it reminded me of a brutal breakup. It was as if, as an acquaintance who’d had a similar experience noted later, I had discovered a room in my house that I’d forgotten existed.

My original plan had been to choose an album to rip and then write about it, but the memory vault was just too distracting. I started randomly listening to cuts, reminding myself of how I became the person I am today. Like a breakthrough mental therapy session, the explosion of albums from my past set my consciousness astir, an experience both exhilarating and destabilizing.

My kids bugged out when they came home from school and saw all the records strewn across the dining room. But then my daughter turned on the computer because she wanted to listen to some music. And I was a little sad to realize that there would never be a similar trip down memory lane for her.

As a full-fledged member of the digital generation, her music, her pictures, her video, will all be on the hard drive. The only thing that will tie her to the data that will help define her identity will be her ownership of it — her ability to retrieve that data when and where she wants it. And in a digital age, such ownership is a fragile thing, under constant attack and frighteningly vulnerable — not just to lawyers, but also to computer crashes and format changes.

If the entertainment studios had their way, every time a format changed, you’d have to buy all your records all over again. In their ideal world, we would hold restricted licenses to our content, not ownership. Digital rights management would cripple our all-powerful computers, creating backups would be impossible, and the basic human impulse to share the wealth of information that helps define who we are would be beset with obstacles. This is not paranoia. At every step of the way, intellectual-property-right holders have resisted technological innovations that give ordinary people more scope to enjoy and consume music, television, movies or any other content.

That’s why MGM vs. Grokster is so important. The deeper we get into the digital age, the more we will be defined not by our relationships with physical objects but with the data that we have accumulated in our journeys through life. If we lose the right to own that data and do what we want with it, if the power of the computer, and the Net, is taken from us, we’re at risk of losing a lot more than a few files — we stand at risk of losing the evidence that tells us who we are.

The chore of ripping vinyl is a quick lesson in what a pain in the ass the analog, pre-digital lifestyle really was. But it’s also a reminder, in case anyone has forgotten, of the marvelousness of the computer.

The first shocker is that to record an album on one’s hard drive, you actually have to play it in real time! Again, my kids — who, just before leaving on a road trip over the weekend burned two albums to CD in about three minutes — were befuddled. Real-time is slow. Digital is not slow.

But if you manage to get your album converted to some kind of humongous, uncompressed file, then you are faced with all kinds of subsidiary questions. Do you try to clean up the cracks and pops? What format do you compress the file into? How do you divide up the tracks?

Ripping vinyl is a time-consuming task that demands attention and requires getting up to speed on audio-editing software. But that it’s possible at all is astonishing. The fact that I can look at the waveform for Hendrix’s version of “All Along the Watchtower” and not only see that annoying, nasty popping sound just before the guitar solo, but delete it right out of existence, was eye-opening. Gee, having transformed that analog record to a digital file gives me all sorts of power, doesn’t it? Now I can sample it, cut and paste it, mash it up with other songs, rip it to CD, e-mail it to my friends, post it on a publicly accessible Web server.

Whoops — might not want to do that last part, or a nastygram from the Recording Industry Association of America could soon follow. But you get my point, right? That amazing protean device, the computer, gives me digital omnipotence. And that phenomenal distribution network, the Internet, contains all the software, and all the wisdom necessary to use that software to wreak my magic and share the fruits of my labor with the world.

But is the distribution of all that power to the masses good or bad? That, in essence, is what the Supreme Court is really being asked to decide. This struggle has been years in the making, brewing ever since people started to understand what networked computers were truly capable of. The highest court in the land is set to rule on a fundamental aspect of the Internet, the fact that it makes copying stuff absurdly easy — to the point that a tidal wave of copyright violation has swept across the globe, destabilizing entire industries in its wake.

The specifics of the case concern certain P2P networks, but fundamentally speaking, the entire Internet is a P2P network. It is the greatest invention for facilitating the sharing of information ever created.

Now what do we do with that? Do we decide that because it is easier than ever before to copy intellectual property we must cripple our computers and the Net, because the threat to established business models for the entertainment industry is so great? Or are the benefits from the new paradigm so obvious that it’s time to tell the lords of Sony and Universal and MGM to suck it up, to evolve new business models, or die? To go with the flow, rather than try to resist the tide? Isn’t it time to let a thousand iTunes music stores bloom?

Both sides in this dispute are right. After the RIAA sued Napster out of business, the operators of file-sharing programs redesigned their systems so they would not suffer from Napster’s fatal flaw. Napster included a central index of the files being shared, and so its owners knew who was using its system for copyright violation. But because they did nothing about it, they were deemed at fault.

I believe the record company lawyers when they argue that the changes in design to P2P networks were made on purpose so that the operators of the networks could get away with profiting from illegal activity while still staying within the bounds of the law. When an individual downloads a copy of a new Ashlee Simpson single from a P2P network without paying for it, that is a violation of copyright. Just how morally wrong that might be is a debatable issue. But its illegality is not.

To recap: The Sony-Betamax case decision ruled that it was legal to sell a device that could be used for illegal purposes. The defendants in Grokster argue that the same is true of P2P networks — they are used for legal distribution of content as well as illegal. And they are correct. But there is no denying that P2P networks are popular because they are a great way to get free access to proprietary intellectual property. It’s a big problem for the music business as it is presently constituted, and I have some sympathy for the executives trying to cope with it. If I were in their position, I’d try to stop it, too.

But I would fail because no matter how the Supreme Court rules in this case, the entertainment industry will not succeed in its efforts to stop widespread piracy. New distribution protocols will continue to be devised and people will continue to use them. It only gets easier to copy and distribute content. It never gets harder. Digital-rights-management software will continue to be cracked as soon as it appears. Or it will simply be irrelevant. Even the DRM software included in, say, Apple’s iTunes, is a joke. I can buy a new album by the Sri Lankan rapper M.I.A. on iTunes, burn it to a CD, and then rip that CD into DRM-free MP3s and make it available for sharing on a P2P network in a matter of minutes. There might be some downgrade in sound quality inherent in the process of burning and ripping, but not enough to matter to anyone who really, really wants to hear the song “Galang” right now and is unwilling to pay 99 cents for it.

To be totally successful in preventing me from piracy would require a massive reengineering of the entire infrastructure of the digital world. Every device or program that enables the copying of data would have to be redesigned. So the defendants in Grokster are also right when they argue that the logical extension of the entertainment industry’s position would mean bringing the digital revolution to a screeching halt. If the test of every new device or new software application or new improvement to the Internet is to ask whether it could possibly hurt the existing business models of movie studios and TV networks and music companies, then we might as well just all pack up our computers, go home, and start sharpening our pencils.

The combination of computers and the Internet is Pandora’s box. The court has two obvious options: It can give the entertainment industry the right to stuff everything that has just popped out of that box back in, or it can recognize the inevitable, that the cat is out of the bag and we’re all going to have to learn how to adapt.

It is possible to adapt, after all. iTunes is one great example — even if the DRM included in it is annoying. My desire to search out songs on file-sharing networks plummeted when I was offered an easy, cheap way to get the music I wanted. Now I pay more for music on a monthly basis than I have in years and years. I suppose it’s possible that the overall profitability of the music industry might decline in the long run, but then again, it might not. In the most famous example, Wilco’s “Yankee Hotel Foxtrot” was spiked by its record company for not being commercial enough. Wilco leaked it online, generated a huge buzz among listeners, and then landed a new contract.

Great changes are afoot. Anyone paying attention to the Net has known this for a decade or more. The Supreme Court’s decision to hear Grokster is just the latest ratification that profound questions about how to grapple with these changes need to be asked and answered.

And it doesn’t have to lead to disaster. Because much as I wax nostalgic about my ancient albums, and worry about the precariousness of a world constructed out of pure data, there is still no question in my mind that what the computer has given us is better than what it has taken away.

“Play another record, Daddy,” my son says, staring with fascination at the spinning black platter. My son is only 7, but he likes to rock. So I throw a little Killing Joke on and think back to my first summer after college to a late-hours club called the Vatican in Gainesville, Fla., where the playing of “War Dance” was a regular reason to hurl oneself onto the dance floor, with or without company.

Underneath Killing Joke in a stack of albums is Neil Young’s three-record compilation, “Decade.” Running my hands over its well-worn jacket, I recall persuading my grandfather to buy it for me when I was 13 or 14. He didn’t know beans about popular music but he was trying to spoil me by offering to purchase one album. Being a sly opportunist, I picked an album that contained a whopping three records. And then listened to it, obsessively, for years.

Beneath Neil Young’s plaintive visage stare the gangsta faces on the cover of N.W.A.’s “Straight Outta Compton.” The strutting of Easy E seems ludicrous now. But staring at him I recall a night, fueled on tequila and rage at a busted marriage, spent chanting “Fuck Tha Police” with a friend at 3 in the morning, while throwing darts at a picture of my ex.

It’s easy to get nostalgic about lost eras. Record albums are cooler than CDs and even the pallid CD jewel-box is an improvement on the physical nonentity that is a digital file. It’s easy to imagine that our lives are somehow poorer without these signposts. When, 30 years from now, my son and daughter look for mementos to evoke their childhood, what will they latch on to? A playlist? Is that enough?

I think, actually, that it is. Because the whole fetishization of object as memory aid, much as I like to wallow in it, is still a red herring. It’s the music itself that carries the most evocative force, not the delivery mechanism, no matter how cool the holographic art on “Their Satanic Majesties Request” or how massive Bob Marley’s spleef is on “Catch a Fire.”

I’ll be honest: making a symbolic point by ripping my vinyl in honor of Grokster was really just a side benefit to my main goal — getting all my music into the format where it has the most potential to be a vibrant, enriching part of my life.

The truly remarkable thing about the digitalization of music, and the emergence of the computer as my playback device of choice, is that it has made me a more active listener and a more empowered consumer than ever before. I am exposed to more new music now, via the Internet, than previously, and I enjoy better, easier, more serendipitous access to my old music. A random shuffle of my iTunes library is a swirling kaleidoscopic tour of my personal history, a constant delight.

That library is a part of who I am, and once I get everything I ever loved in there, I’m going to make sure I never lose it again. And I’m going to share it with friends and family.

So my kids won’t have albums or CDs to haul around with them. But they will have, in their iPods or laptops or Sony PSPs or some new, as-yet-inconceivable doohickey, unbelievably vast libraries of art and photography and music and history and literature and science that will be personal expressions of glorious complexity. And they will have unprecedented powers to express their creativity in all kinds of audiovisual splendor. The future will belong to those companies who figure out how best to serve them, while those that get in their way will themselves fall by the wayside. The future should belong to the smart — to the TiVos and Apples and Googles — the companies that are nimble and cater to our needs, rather than to those who thwart our desires.

An enlightened society finds the right boundary lines between what profits the corporation and what profits the soul. Decisions are always being made as to what is acceptable or not. Home taping: OK. Selling copies of pirated movies: Not OK. In between, it always gets messy. Computers and the Internet have made possible an era in which information and art can be shared and distributed as never before. And yes, that does mean that people will share things that don’t necessarily belong to them. But that’s a small price to pay for living in the future. Here’s hoping the Supreme Court understands that, when, sometime in the next few months, it decides the future of the Internet.