The U.S. Supreme Court is considering whether software companies can be liable for their products that enable illegal sharing of music and video files. The case of M.G.M. v. Grokster has the attention of major and diverse players. Over 55 amicus briefs – statements by those who are not directly involved in the case – have been submitted to the Court for consideration. These include the NFL, the NBA, the Christian Coalition, Senators Leahy and Hatch, and two photography groups - the PPA and the ASMP, which specifically note that the “illegal file-sharing poses particularly significant risks for publication photographers and other small copyright owners whose livelihoods depend to a substantial degree upon commercial exploitation of their creative works.” Some of the materials can be viewed here:
http://news.findlaw.com/legalnews/lit/mpaa/index.html The issue is not whether file sharing of copyrighted materials is illegal – it is. The issue is whether a manufacturer can sell a device that allows customers to commit copyright infringement. It is based on the legal theory of secondary liability. Computers or the Internet likewise could be considered devices that enable someone to steal others’ work. But since those items also can be used for legal activity, the benefit of doubt goes in their favor. On the contrary, anyone caught with items that have no legal use – such as burglar’s tools that can be used only to break into a house – can be prosecuted without more.
The individuals who use Grokster’s service to illegally download music will not get the same benefit of doubt. They commit the infringement and are subject to civil and criminal prosecution. Case closed.
How can we stop the infringement? Even if the Supreme Court outlaws Grokster’s software, infringing activities won’t stop. We must find other ways to at least minimize it. There are things we can do.
First, we can educate the infringers. Some people don’t realize that sharing files of copyrighted work is illegal. The recording industry increased its public awareness program and found a significant rise in the percentage of persons aware that it is illegal to make copyrighted music available online for others to download. When some people know that an activity is illegal, they don’t do it. Second, we can develop and use technology and other features that make it difficult for others to steal our work. Some thieves are lazy and won't steal anything that takes effort. Third, we can make it easier for potential infringers to purchase the product they want. The recording industry has learned that consumers will purchase one song when they don’t want to buy the entire album. Last, we can sue those who steal the work so that they and others learn that the theft will not be tolerated. Going to jail or paying a fine is a deterrent.
So don’t blame the messenger. Change the message. Follow the course of our fellow recording artists and protect your work.
Copyright 2005 Carolyn E. Wright All Rights Reserved
--- ABOUT THE AUTHOR ---
Carolyn E. Wright, Esq., has a unique legal practice aimed squarely at the needs of photographers. A pro photographer herself, Carolyn has the credentials and the experience to protect photographers. She’s represented clients in multimillion dollar litigations, but also has the desire to help new photographers just starting their careers. Carolyn graduated from Emory University School of Law with a Juris Doctor, and from Tennessee Tech Univ. with a Masters of Business Administration degree and a Bachelor of Science degree in music.
She wrote the book on photography law. “88 Secrets to the Law for Photographers," by Carolyn and well-known professional photographer, Scott Bourne, is scheduled for fall 2005 release by Olympic Mountain School Press. Carolyn also is a columnist for PhotoFocus Magazine.
Carolyn specializes in wildlife photography and her legal website is http://www.photoattorney.com
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