Another Fine Mess

As Ollie often said to Stan after one of their misadventures in the famous Laurel & Hardy comedy flicks from the 1930s: "Well, here's another fine mess you've gotten us into."

It's been about 90 days since U.S. District Judge Stephen V. Wilson in April handed down his controversial ruling declaring that the Morpheus and Grokster file-sharing networks were legal, despite being widely used to copy songs and movies illegally.

And it's clear, given the perspective provided by time, that Wilson is the Stan Laurel of this tragicomedy known as the downloading debate. What a fine mess his ruling has gotten us into.

The essence of Wilson's 34-page decision was that Morpheus and Grokster could not be held liable for crimes committed by their users because the networks neither monitor nor control what people do on them.

Forget for a moment that this is contrary to a number of analogous situations —we'll get to those in a bit—just look at what's happened in the weeks since the judge issued his opinion.

The Recording Industry Assn. of America (RIAA) has launched a scorched earth policy, vowing to sue thousands of ordinary citizens if they open their computer music files to others through these services.

File-sharing operations have responded by declaring that they will start incorporating privacy protections in their systems to shield users from the RIAA's legal beagles.

And so it goes, an unending spiral of tit for tat. It certainly smacks of a Laurel and Hardy movie. Is this really the outcome Wilson intended?

The judge was right in one respect: His ruling was in step with the Supreme Court's 1984 Sony Betamax decision, holding that video recorders were legal even though they could be used for piracy. File-sharing software is no different.

But this isn't about software; it's about how it's put to use. The issue here is intent.

Now to those analogous situations. Printing presses are also legal, but using them to counterfeit money isn't. The possession of burglar's tools is a crime, even if no burglary has taken place, because mere possession of the tools suggests intent. Landlords that knowingly allow criminal activity to take place on their property are both criminally and civilly liable, even if they don't participate in the activity. And the list goes on.

By moving to shield users' identities, the file-sharing services have clearly signaled that they are not only aware of, but are aiding and abetting, illegal activity. Their sites should be busted—not by the RIAA, but by law enforcement agencies.

Ironically, the industry lawsuit only sought to force Grokster to add a filtering system to block searches for copyrighted material; it didn't seek to shut down the service. That's a reasonable request by any measure.

Wilson would have done everyone a favor by seeing these businesses for what they are: illegal counterfeiting operations. Instead, he effectively legalized piracy. What a fine mess, indeed.