WASHINGTON, Jan. 27 (UPI) -- Since the start of the 20th century, artists -- often referred to as creators -- have squared off against the hardware and software distributors -- less frequently referred to as inventors.
Creators see inventors as predatory. They invariably seek to erect barriers to innovation. The phonograph inventors were sued by representatives of the music community. The manufacturer of copier machines was sued by a coalition representing literary interests. The creators sued, claiming the inventors would destroy their livelihood by eliminating the need to deal directly with them. In other words creators claimed that their creations were either being used unfairly (without payment) or would not get used at all.
Inventors responded that they were not using the work of the creators. Instead, they were making a product that was ultimately pro-creator because the public's value and use of these inventions would actually makes the creations more valuable. Moreover, if the inventions were being used improperly it isn't the inventors fault; it's the consumer or purchaser that should be singled out.
Perhaps it demonstrates some cosmic difference between left brain and right brain approaches that the law has tended to side with the inventors over the neo-Luddite creators. This tilt has insured that dramatic technological advances could occur while simultaneously protecting creative impulses. Unencumbered innovation aids and rewards creators in a way that unencumbered creation alone never can.
Sure enough, creators soon learned that the phonograph stimulated interest and demand in music in a way that attending concerts in a music hall never could. They also came to realize that copiers and libraries both encourage more reading and book publishing than private book ownership alone would.
And yet even as the creators have prospered in this environment they remain convinced that somehow their impulse to limit or restrict innovation would be better for themselves and the U.S. economy. Even as creators and the inventors work together, like the English workers of the 17th century afraid of the Industrial Revolution, creators lash out at innovation and technology when they think the timing is right.
Remember back to 1984 and the landmark Supreme Court case about home video recording. While everyone now knows VCR's are legitimate products to sell and own, we've forgotten the claims made by the "content providers" at the time. They said that these must be banished because as videocassette viewing skyrocketed, movie sales would decline and television commercial revenue would disappear.
Jack Valenti the former head of the Motion Picture Association so colorfully said, "I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone." Not withstanding the overheated rhetoric, once again, the law sided with the inventors. But just barely. In Sony Corporation of America v. Universal City Studios, Inc. the Supreme Court in a 5-4 decision sided with inventors over creators holding that a distributor cannot be held liable for end users' infringement so long as the tool is capable of substantial noninfringing uses.
Guess what happened. It is true, videocassette viewing skyrocketed, the VCR became as ubiquitous in the American household as the phone and the microwave oven. It spawned the creation of rental companies like Blockbuster and Hollywood video a major boon to creators. Additionally, the other claims proved completely unfounded. Similarly, commercial revenues continued unabated even as the television viewing audience fragmented between network and cable programming. It turned out that the inventors aided the creators -- in this case the motion picture industry -- by stimulating demand and providing greater access and convenience. Actors, directors, and producers -- the creators -- saw their profits rise to stratospheric levels thanks to the inventors of the VCR.
The creators are back again and they promise us that this time the technology and innovation they want to stop is different. This time they claim they are on the side of innovation and economic growth. Just as one wonders what would happen if the barking dog could ever catch the passing car on the road, what would happen if suddenly the law tilted away from inventors and toward creators? It could happen and a case waiting for oral arguments before the U.S. Supreme Court (MGM v. Grokster) may give the creators the opportunity they've longed for.
The case began in October 2001, when the music and movie industries sued several distributors of peer-to-peer file sharing software (software which makes it remarkably simple to create practically identical digital copies). The creators (the music and movie industry) advanced a "creative" claim -- vicarious infringement by the inventors (software distributors Grokster and Stream Cast). According to the creators, the inventors had control over their consumers misuse because "the file sharing software itself could be altered to prevent users from sharing copyrighted files." The same could have been said about the VCR. It could have been modified and recast as the Videocassette Player without recording functions. It likely would not have been nearly as useful or as popular as the VCR.
In a refreshing moment of maturity, the 9th Circuit sided with the inventors. The court dismissed the vicarious infringement and recognizing that far from hindering the music industry, this technology has the ability to stimulate and develop heightened levels of demand for new content by distributing it far and wide to newer and larger audiences at no cost to the creators.
But now the creators have appealed and if the Supreme Court overturns this commonsense ruling the consequences could be dramatic. The synergistic relationship between new technology and copyright protection will be shattered. A ruling that upholds the banishing of innovation will prevent the development of new markets and stymie economic advancement. Instead of the 20th century pattern of inventors invariably augmenting and advancing the cause of creators, the pre-20th century fear of modernity and progress will be unleashed. Consumers and the economy will suffer.
Imagine a world without the phonograph, the VCR and the copier. If the creators had their way, all three of these technologies and many like them would have been strangled in the cradle. Hopefully the Hollywood strangler won't be unleashed by the Supreme Court and U.S. innovation and technology will be safe in our homes.
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(Horace Cooper is a senior fellow with the conservative Centre for New Black Leadership.)
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(United Press International's "Outside View" commentaries are written by outside contributors who specialize in a variety of issues. The views expressed do not necessarily reflect those of United Press International. In the interests of creating an open forum, original submissions are invited.)
