Supreme Court Justice David H. Souter got it all wrong. When he wrote the opinion for the court's decision last week in the case of studio giant MGM vs. file-sharing developers at Grokster, his words sounded weak. Here's what he wrote:
"We hold that one that distributes a device with the object of promoting its use to infringe copyright...is liable for the resulting acts of infringement."
To translate: If you develop a computer program that can trade copyrighted files, and then let users know that it's possible to download copyrighted files, you've got blood on your hands. And if you get caught, you will pay dearly. Make sense? No? Then here's an analogy:
Let's say you make guns. And let's say, as part of your marketing strategy, you place your gun in Die Hard 5, wherein a very snobby and evil terrorist of European descent uses it to kill Bruce Willis' dog. Now, if anybody ever uses your gun to kill any dog unjustly-using Souter's explanation-you would be sent to prison for dog-killing. That's the way it works.
But that's actually NOT the way it works. Gun companies like Smith & Wesson hire product-placement firms to put their guns in movies where balding action heroes can show audiences how to kill dogs and people and shoot out streetlights. But if their guns are used to kill people, they don't go on trial, or if they do, they rarely lose. And maybe they shouldn't. I don't know. This isn't a gun column. This is a music column that reserves the right to use guns to make a point.
The point here is that the court's decision had to do with more than a pure reading of manufacturer's liability or intellectual copyright issues or whatever. Some will say corporate interest drove the decision, but I have more faith in the humanity of our supremest of courts. I know that what Souter really wanted to say was the same thing radio talk-show host Rick Emerson said two weeks ago in a performance of his one-man play, Bigger Than Jesus, at Portland State University.
"When a piece of music-no matter what it is-makes you smile, or makes you wanna dance, it has value; it's worth something," Emerson said.
That's the idea that should make anyone think twice about the concept of free music. All of us music fans know what it is to put in three hours of minimum-wage misery to make enough money to buy a CD. In high school, music was always the answer to the question, "Why am I working at Wal-Mart?"
Value and worth, after all, are not free, and whether you're trading conch shells, backrubs or dollars, the very act of commerce adds to the experience. Music sounds the same whether it costs something or nothing, but music means more when you have to sacrifice for it, which is what Emerson's tale of youth, rock and rebellion is all about.
But what happens when all music is shared and there's no more risk? Whether the court wanted to or not, its decision will keep us from finding that out. For a little while longer, anyway.