P2P's Supreme Spectacle
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WASHINGTON -- Even by the high theatrical standards of Supreme Court hearing days, Tuesday's antics signaled that the online file trading controversy could change the law of the land regarding copyright.
In whose favor -- Hollywood or Silicon Valley? Judging by the scene outside the court, final oral arguments in MGM v Grokster case had all the trappings of a monumental case: dueling protestors waved placards like "Thou Shalt Not Steal" and "Hands Off My iPod," talking heads irresistibly drawn to the national TV lights, scrums of reporters clustered around "official" spokespersons.
Not to mention the truckloads of tourists and teenagers (the first generation to take P2P for granted) wading into the fray, all hardwired to their download devices, firing away with their digital cameras and camcorders.
Those lucky enough to snatch one of 50 public seats inside the Supreme Court quickly discovered that the issues are considerably more complex than can be fit on a catchy courtyard placard or captured in a snappy sound bite on the courthouse steps.
Poker-faced justices, looking down from their perches, fired away at both sides of the issue.
It just "sounds wrong" to use stolen, copyrighted material "as a kind of start-up capital" for P2P firms, Justice Anthony Kennedy said.
Is it wrong to blame those who develop the technology as just as guilty as those who use it to steal copyrighted media files, said Grokster attorney Richard Taranto,citing the landmark Sony Betamax case that defined case law for protection in similar copyright issues. Judge Antonin Scalia startled him by declaring that MGM v Grokster might not be decided on the precedents set by Betamax.
But Hollywood fared no better during its turn in the dock. MGM attorney Donald Verrilli said the Betamax case doesn't apply anyway since there is no other "substantial" non-infringing use of file-swapping software. That bought him a barrage of questions skeptical of Hollywood's numbers and legal logic.
After the hearing, both sides predicted ultimate victory. And then they were all off to post-hearing cocktail parties, luncheons and rallies about the big legal day for P2Ps.
Tech's widely covered appearance before the high court said at least this much about disruptive technologies: innovators will be sued early, often and sometimes fatally. In the hurly-burly of the process, case law like Betamax can fall and the American public will be fascinated, at least until the next case seeking its own 15 minutes of fame comes along.
By then, it may all be moot anyway. If tech wins, Orrin Hatch waits with the Induce Act still wending its way through Congress. If Hollywood triumphs, the P2Ps could simply move offshore beyond the reach of U.S. laws, much as the online gambling fraternity sought the shores of friendlier nations.
CONGRESS: Technology issues and in particular, telecom reform, barely made backburner status in the first 90 days of the 109th Congress. The House, always keen on retail politics, held two spyware hearings and both the House and the Senate put together hasty hearings to tut-tut about online privacy.
Current conventional wisdom says lawmakers are leery of jumping into telecom reform until the Federal Communications Commission (FCC) finishes its review of IP-based services. Any congressional action on file-swapping is surely on hold until the Supreme Court issues its opinion.
FCC: The transition from Michael Powell to Kevin Martin as chairman of the FCC is shrouded in uncertainty. Martin's promotion from FCC commissioner to chairman has left a still unfilled vacancy on the five-person panel, leaving the group with two Republicans (Martin and Kathleen Abernathy) and two Democrats (Michael Copps and Jonathan Adelstein).
Abernathy is reportedly close to resigning her position and at latest count, Media Bureau Chief Kenneth Ferree, Consumer & Governmental Affairs Bureau Chief Dane Snowden, Wireless Bureau Chief John Muleta, Enforcement Bureau Chief David Solomon and Wireline Bureau Chief Jeffrey Carlisle have all resigned.
A sure sign of the uncertainty is that the FCC, which normally meets on the second Thursday of each month, has pushed its next meeting back to April 28.
END NOTES: Former AOL honcho Steve Case is in Washington selling vacation time to the rich and famous through his new company, Exclusive Resorts . . . Lawmakers are so addicted to Blackberries that the very short tunnel between the Senate Russell and Dirksen office buildings has been wired for the devices.
Roy Mark is the Washington Bureau Chief for internetnews.com