In a unanimous decision, the Supreme Court decided against the file sharing application in MGM v. Grokster. What follows is the rant that I promised yesterday, if this happened.

For those of you who aren’t up to speed on this one, I’ll try to summarize. Grokster is a software program that allows consumers to share files across the internet. It is “peer-to-peer” software, which means that users connect directly to other users in order to search for and exchange files. File information is never sent to a central Grokster server, and Grokster has no knowledge or control over the files that consumers exchange using their software.

According to MGM, and not really denied by Grokster, a large majority of the files that are exchanged using the software are copyrighted music and movies. Grokster stressed the benefits of peer-to-peer technology over the more common ways of exchanging files, which depend on a central server. They claimed that their technology has considerable uses other than to facilitate the exchange of copyrighted material.

I have read through the Opinion of the Court, and it appears that Grokster didn’t do a whole lot to help themselves. It is obvious that they did little to discourage the exchange of copyrighted material, and there is considerable evidence that they used the availability of free copyrighted material as a selling point of their software to help attract more users, which translated into more advertising dollars.

So, the Supreme Court decided that Grokster went too far. Their decision claims that this is not an indictment against all types of file sharing software. It is not a decision against any company or application that facilitates the sharing of copyrighted material. It is just Grokster. Clearly, they went too far.

Basically, today, the Supreme Court drew a line. A very fuzzy line. A line that will be moved, shortened, twisted, and bent so often over time that it will disappear entirely. What eventually happens when the Supreme Court draws these fuzzy lines was made painfully clear just last week, when the line that was “public use” disappeared and became, instead, “private use”.

Over time, this decision will become justification to future courts to move the line even farther. By deciding against Grokster, the court decided that a company can be held responsible for the actions of users of its software or network, even if it has no reasonable way of monitoring the activities of these users.

In my opinion, a technology called BitTorrent is clearly the next to be targeted. BitTorrent works in a similar way as Grokster, and surely a considerable amount of copyrighted material is transferred using the technology. The difference is that BitTorrent has gained the respect of the software community, and many companies are using it for legitimate purposes.

Once the file sharing and peer-to-peer companies are out of business, and people are still downloading copyrighted material, perhaps they will go after Microsoft. Surely one could argue that Internet Explorer facilitates illegal downloads. Maybe AOL, or your local internet service provider is next. After all, you’re on their network. Shouldn’t they be aware of what you are doing online, and prevent any illegal downloads?

Perhaps I am just being paranoid in the Microsoft and AOL examples, but logically the argument against them is very similar to the argument against Grokster. I’m afraid that as that line moves, more pressure will be applied to companies such as those to create more ways to track and block user’s actions online, to prevent this type of decision against them.

The fact is, I don’t believe that Grokster is doing anything illegal. If an illegal act is occuring, it is the end user that is commiting it. They search for the song. They click the song. They download the song, and they play the song. Grokster, like Napster before it, is simply one way for them to get their song. When Napster was shut down, did this stop the activity? No! It just created a opportunity for many Napster clones.

There are tens of millions of people interested in dowloading music online, and this creates a huge demand. Some company or some creative individual is going to find a way to meet the demand of these individuals. The government stopping illegal file sharing is just as impossible as the drug war stopping drug use. Their continued interference can only result in the eventual regulation of companies like AOL and Microsoft, and even then the “problem” will not be solved!

So, what is the solution? I will be the first to admit that I don’t have the answer, but I feel like the solution will have to come from the motion picture and recording industries themselves. They are the ones that are losing money every day that they rely on the government to provide the solution.

It looks like they are starting to realize this, and are moving in the right direction. Through services like iTunes, they are offering consumers a choice to buy the music they want instead of stealing it. Media players from companies like Microsoft are now shipping with licensing features built in, and with these features consumers can listen to music legally on devices like MP3 players, which have licensing support built in.

Record companies are also now suing individuals directly for downloading copyrighted material. This tactic alone has frightened away many former file swappers.

While this tactic raises concerns as well, I find it considerably more acceptable than the alternative: suing an endless number of facilitators, raising the stakes and eliminating liberties with each “success”.