The last day of the 2004-2005 session of the US Supreme Court saw the release of several greatly-anticipated decisions. I'll let others discuss The Ten Commandments - tempting as it may be, this is a technical forum after all. Therefore I'm going to concentrate on two cases that dealt with an issue near and dear to the heart of everyone reading this - the Internet.
One case, Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., talks about Peer-to-Peer file sharing. The other, National Cable & Telecommunications Assn. v. Brand X Internet Services, dealt with requiring cable companies to provide infrastructure support (the links are to the actual decision PDFs). On the surface, there seems to be little in common between these cases aside from the Internet connection, but in actuality they both deal with the same fundamental issue - property rights.
Now, I have seen reports that these two decisions are the death-knell to freedom online. In particular, the Grokster case. The “sound bite” version is Grokster lost in a unanimous decision. Given this court propensity for 5-4 splits, that's big. Really big. But even the most casual reading of the decision itself shows that such fears are unfounded. The issue is not peer sharing technology itself - the court clearly acknowledges its benefits of its legitimate use. Nor is the primary issue even that a large percentage of people use such technology for violation of copyright - though that played a significant role. No, the real crux of the issue is that the developers of Grokster and StreamCast actively promoted and encouraged the piracy aspects - almost to the exclusion of mentioning any legitimate use.
The big fear was that the Court would use this case to overturn the Sony v Universal Studios ruling, which upheld the “fair-use“ rights of people to use copyrighted works for their own purposes at home via such means as the VCR. This the Court explicitly did not do - they held that the intent shown by Grokster and StreamCast made this case clearly different, and therefore they could be prosecuted for common-law inducement of infringement. The moral of this story? Feel free to innovate - build and promote all the better mousetraps you like. Just don't build and promote a better lock-pick and expect not to be implicated in the burglaries!
The Cable case wasn't quite as clear cut. The decision was 6 to 3 - still substantial, but not earth-shaking. It also followed this Court's tradition of a number of partially concurring and dissenting opinions. This case involved whether the FCC should force cable companies to let other carriers share their infrastructure and bandwidth. The chicken littles of the world feel this is a victory for entrenched big-business, and that it will end up with centralizing control of the Internet. This is wrong on a couple of levels - the biggest of which is the fallacy that the Internet isn't already centrally controlled - but that is a lecture for another day!
The issue came up because the FCC decided that DSL infrastructure needed to be shared as per telecommunications service regulations, but that Cable did not, as it was a data service. With the advent of VOIP (Voice Over Internet Protocol) that distinction is getting blurrier every day. What the court held, essentially, is that the FCC was within its legal jurisdiction to decide the technologies differently based on changing technological and market conditions. (Personal Note: I also read into this an implied statement that the FCC is free to change its mind on the DSL issue, and/or that Congress is free to change the rules.)
These two cases both involved the upholding property rights. In the first case, it is the rights of copyright owners to protect their works from illegal copying. In the second, the rights the owners of an infrastructure to determine who uses it. Such property rights are essential. They form the basis for us to determine our individuality, regardless of scale. Without the ability to protect what is our own, we cannot ensure our survival.
These decisions are a threat, however - to those who feel the Internet should be an anarchy, where nobody owns anything, and freedom means “what's yours is mine for the taking“. Such freedom is false, and encourages a disrespect for others that is damaging to any kind of civilized world - whether real or virtual.
