Note: This op ed column by Nicholas Johnson is a response to a Gazette editorial of July 1, 2005, "Stop Bumming Your Music," to which reference is made in this column. See also, Aaron Larson, "Keep on Rockin' In the Free World," below, a letter to the Gazette published after the column had been written, submitted and accepted. Larson is a musician who gives away his music on the Internet, an example of one of the legitimate uses of "file sharing" to which Johnson refers.

The U.S. Supreme Court's opinions in this case, Metro-Goldwyn-Mayer Studios v. Grokster, 545 U.S. ___ (2005), can be found on the official Supreme Court Web site. Justice Souter's opinion of the Court is at http://wid.ap.org/scotus/pdf/04-480P.ZO.pdf. A concurring opinion by Justice Ginsburg, joined by Chief Justice Rehnquist and Justice Kennedy, can be found at http://wid.ap.org/scotus/pdf/04-480P.ZC.pdf. Justice Breyer's concurrence, in which Justices Stevens and O'Connor joined, is at http://wid.ap.org/scotus/pdf/04-480P.ZC1.pdf.

[Note: This material is copyright by The Gazette, and is reproduced here as a matter of "fair use" for non-commercial, educational purposes only. Any other use may require the prior approval of The Gazette.]

GUEST COLUMN Nicholas Johnson

Sufficiently tricky dilemmas that neither the editorial, nor this column, will resolve them.      The dilemma confronting U.S. Supreme Court justices and Gazette editorial writers in the Grokster case was that the defendant had not copied anything.     ‘‘Grokster’’ is original, innovative computer software. Apparently, its creators never copied music unlawfully. Never sold or gave away illegally copied music. Never had it on their computers.      So why were they violating copyright laws? Lower courts didn’t think they were.

    The Gazette wrote, ‘‘What Grokster is doing is wrong. And by extension, those illegally downloading copyrighted songs are wrong, too.’’

    The Gazette got it backward.

    The music industry’s greed and unimaginative business models have contributed to its problems. Nonetheless, making copies of songs without the copyright owner’s permission is wrong. Offering those illegal copies to others for sale or free is wrong. Those are copyright violations.

    But the folks violating the law by downloading music weren’t sued. Grokster was.

    The Gazette merely asserted that what Grokster did was wrong. But that was the central issue before the court. Can what Grokster did be a copyright violation, ‘‘by extension,’’ because those who did violate the copyright law used Grokster’s software?

    Lots of equipment can facilitate copyright violations — including The Gazette’s printing press.

    To facilitate British royal censorship, until 1694 the Crown granted favored printers monopoly licenses. Once the monopolies were repealed, anyone with a press could copy others’ books. Printers lobbied for what we’d recognize as copyright protection, the 1707 Statute of Anne.

    This is more than a historical footnote. Printing presses worldwide are still today producing books for which the copyright owner receives no royalties.

    If Grokster’s software is illegal just because it can be used in others’ copyright violations, should The Gazette’s printing press also be outlawed? What about machine copiers, fax machines, audio and video tape recorders, computers generally, especially those with CD and DVD burners? Should their manufacture be prohibited?

    The publishing, film and music industries have been arguing this for years.

    In the Sony case, the movie industry claimed all VCRs were copyright violations. The Supreme Court disagreed. It said that recording a TV program to watch later was legitimate.

    Sure, it acknowledged, some purchasers will sometimes use VCRs in ways that violate copyright. But manufacturers shouldn’t be liable ‘‘by extension’’ if the equipment has substantial non-infringing uses.

    Does file-sharing software have legitimate, non-infringing uses? Absolutely. The court noted its advantages of ‘‘security, cost, and efficiency’’ for ‘‘universities, government agencies, corporations and libraries.’’ Even the music industry benefits, as new music groups give away music to become better known.

    No, Grokster’s downfall didn’t come because the software failed to meet the Sony test. It was because the company was inducing, and marketing its use for, copyright violations. As users increased, so did Grokster’s advertising revenue.

    The constitutional purpose for copyright is ‘‘to promote progress in science and the useful arts.’’ Monopoly rights for owners are a means, not an end. The drafters wanted to promote the social progress resulting from our use of, and building upon, others’ intellectual property.

    Those who make, offer, or download illegal copies of copyrighted music violate the law. Those who do not copy, but manufacture devices primarily designed and marketed to promote others’ illegal copying also may be guilty.

    The challenge lies in striking the balance between encouraging technological and intellectual progress on the one hand, and preventing theft on the other. Innovative business models make it possible. The recording industry is slowly learning that lesson.
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    Nicholas Johnson of Iowa City is a former FCC Commissioner who teaches communications and cyberspace law at the University of Iowa College of Law.

    The RIAA attempts to convince people they are making artists ‘‘go hungry,’’ when in actuality, the record companies are most responsible. On any given album released on any of the major labels such as Time/Warner, Capitol, American, etc., artists usually take a very small percentage of the record’s actual sales.

    Even on the best contracts for high-profile artists like Metallica and Dr. Dre, artists are lucky if they get $1 out of every album sold.

    Sure, that factors out to a couple million for an artist with a multi-platinum album. But for smaller artists who maybe get only 40 cents or less per record, and only sell 200,000 copies, that’s not enough to pay off that Hollywood mansion.

    Artists’ primary source of income is from touring, merchandising and song royalties.

    These people aren’t hurt by illegal downloading at all; in fact, downloading may actually help them.

    Let’s suppose someone hears the latest song by a band on the radio, and likes it. This person gets the album off the Net, then decides he likes this artist so much that he’s going to hit the next concert or go buy one T-shirt. That artist already has made their money back (artists usually get about 90 percent of ticket prices). A band would rather make $8 off a T-shirt or $15 off a concert ticket than 40 cents from an album sold.

    So, under usual circumstances, the only ones affected by illegal downloading are the record companies.

    That is why my band, The Specimen, offers all of our music free online.

    Aaron Larson

    Iowa City