Fergus Cassidy

Sony and share

ONE HOUR is all it took to hear evidence in the US Supreme Court last week, in one of the most important cases yet in the digital era.

The court is now faced with the difficult and complex dilemma of reconciling copyright protection with technological innovation.

On paper, the movie studios asked the court to rule that two companies were enabling infringement of their copyright by providing software which facilitated file sharing across the internet. This type of software is known as peer-to-peer (p2p) and it works by connecting individual computers to one another without the need for a centralised computer or server.

But what's at stake is much more far-reaching than the behaviour of two software companies. The US entertainment industry has been hunting down p2p software since April 2003, and last August a Circuit Court Appeal ruled that file-sharing companies were not liable for their users' copyright infringement.

That decision was based on the landmark Sony Betamax case of 1984. Back then, the movie studios (led by Universal) claimed that Sony's video recorder (VCR) infringed their copyright. Not a bit of it, said the Supreme Court. VCR technology had other significant uses, chief of which was time-shifting.

The deja vu of last week's case is not just about copyright, it also regurgitates the dire warnings about the death of the entertainment industry.

Prominent on the steps of the Supreme Court at last Tuesday's hearing was Jack Valenti, the one time head of the Motion Picture Association of America.

When he was boss in 1982, he appeared before hearings of the US House of Representatives and said: "One of the Japanese lobbyists has said that the VCR is the greatest friend that the American film producer ever had. I say to you that the VCR is to the American film producer and the American public as the Boston stranger is to the woman home alone".

If the Supreme Court had gone the other way in the Sony case, it would have been the end of the VCR and many, many other technologies and machines taken for granted today, up to and including computers. The entertainment industry would also have shot itself in both feet.

By 1987, three years after the VCR non-infringement ruling, it was estimated the income from video rental in the US surpassed cinema ticket sales. What the movie studios set out to crush turned into a nice little earner in the end. And now they're it again with the poor mouth.

This time around is even more serious than 1984. The emergence of digital technology and the internet has raised the stakes far higher and the entertainment industry has the support of some heavy hitters: the Business Software Alliance; the American Federation of Musicians; the National Association of Broadcasters and, significantly, the Bush administration.

The defendants, Grokster and Morpheus, are relying completely on the upholding of the Sony rule. Richard Taranto, their legal representative, said changing the Sony rule "would alter investment in innovation by subjecting innovators to standards that are unpredictable in application and expensive to litigate".

He said it would "put large sectors of the digital technology economy in the hands of entertainment industry incumbents with a vested interest in preserving their existing business arrangements. To the detriment of both creators and consumers".

Gary Shapiro, head of the US Consumer Electronics Association echoed that view: "The Betamax principles stand as the Magna Carta for the technology industry... over the past 20 years. It's about preserving America's proud history of technological innovation and protecting the ability of consumers to access and utilise technology".

It's unlikely that the Betamax rule will be scrapped, but not impossible. If it is changed, the repercussions will be felt far beyond the United States.

REITH ON
On the subject of repercussions, BBC Radio 4 begins its annual Reith Lecture series this Wednesday evening (6 April) at 8pm. Alec Broers, engineer and nanotechnology pioneer, will speak on 'The Triumph of Technology'.

Broers believes that technology holds the key to the future. "It is time to wake up to this fact... We cannot leave technology to the technologists, we must all embrace it. We have lived through a revolution in which technology has affected all our lives and altered our societies for ever."

Full details, including schedule and recordings, are available here