Thou Shalt Not Steal
By THEODORE B. OLSON
March 23, 2005;
This is your lucky day. I have just invented a system that will enable every one of you to obtain access to virtually any and every home and automobile in the United States, as well as millions of private bank accounts. All you need is a computer. And it is free. I will get paid based on the advertising that pops up on your computer screen whenever you use this service. The best part of this system is that the more of you who use it, the more money I will make.
Imagine the pleasure you will derive from using other people's property and the things you will be able to acquire with their money. Absolutely free of charge. No permission necessary.
Of course, I must ask you to promise not to do anything illegal with this marvelous new tool. But, don't worry, I'm not going to do anything about it if you break your promise. In fact, I know that most of you will be using this system for unlawful purposes. Why else would you want it? But I can't control what you do. As long as you might use the system for a lawful purpose, for example to access your neighbor's house to water plants, I'm in the clear.
* * *
Sounds pretty scary doesn't it? And, of course, you know that I don't really have the system I've described. If I did, I would surely be shut down in an instant. Neither our government nor our society would tolerate a mechanism that would promote, enable and facilitate such a massive, ongoing and uncontrollable theft of property.
Well, it may be fortunate for you that my system does not exist. But the bad news for songwriters, recording artists, actors and filmmakers -- and the 5.5 million people who work in the $625 billion creative and intellectual property industry -- is that the system described above does exist today for the unlawful downloading of copyrighted music and movies.
These copyrighted products are being stolen every day as a result of so-called peer-to-peer file sharing systems that are available to any one of us free of charge as long as we have a computer. They are operated by companies who make millions of dollars in advertising revenues aimed at the systems' users. It has been estimated that tens of millions of songs and 400,000 movies are illegally copied in this manner every single day.
Later this month, in MGM Studios v. Grokster, the Supreme Court will consider the legality of these systems. The companies claim that they have no responsibility for the damage they are doing because they have willfully blinded themselves to the details of the infringement that is taking place in their systems. Yet, according to the record in this case, it is not seriously contested that the overwhelming use of the systems -- over 90% -- is for unlawful copyright infringement. Indeed, the U.S. government says that these networks were marketed specifically based on their "capacity for infringing uses in order to build a critical mass of users."
The Framers of our Constitution believed that private property rights are at the core of a free and prosperous society; and that property comes in many different forms, intellectual property as well as tangible property. In fact, the Framers considered intellectual property rights so important to the development of our culture and economy that they extended special protection to intellectual property through the copyright and patent clauses of our Constitution. For over two centuries, Congress has implemented these protections through laws designed to provide our creative citizens with a property-based incentive to transform their ideas into innovations and artistic works in order to stimulate creativity and promote the progress of science and useful arts.
As a result, the United States leads the world in creative output. American music, movies, books, software and other creative works are an extremely important component of our national economy and constitute our second leading source of exports. Approximately 6% of our gross domestic product is derived in one form or another from our creative community.
Grokster-type enterprises deprive our artists, musicians and software developers of the financial incentive and sources of capital necessary to develop original works. In the short term, this harms the creators, the investors, and those who labor in the creative vineyards. No one will pay for their products if they are available without cost. In the long run, however, it will be the public and future generations who will pay the price in the form of songs, movies and works of art that are not created if the law allows the fruits of their efforts to be stolen.
These systems also inflict immeasurable damage to our standards and morals. By enabling millions of persons, especially our children, to take property without paying for it, we are sending a potent message that it is acceptable somehow to steal music if it is done in the home with a computer rather than stuffing CDs from a store into a backpack and walking out. That is why many organizations who represent traditional values have joined in the effort to stop this systematic and widespread theft -- unified by belief in the simple and ancient principle: "Thou Shalt Not Steal."
A coalition of family groups and law enforcement organizations have also explained in friend-of-the-court briefs that many peer-to-peer networks serve as conduits for child pornography, and facilitate credit-card fraud and identity theft. Those are indirect but very real and damaging by-products of the systems designed to facilitate copyright infringement.
The purveyors of these file sharing enterprises advance the utterly absurd defense that inhibiting their unlawful enterprise will somehow stifle innovation. Not unless stopping pickpockets stifles magicians. The fact is that innovators must have legal protection if they are to innovate. The best way to stifle innovation is to allow the theft of the innovator's product. Lawful and productive creativity is severely inhibited when cheating and theft is not controlled.
The Framers' insights are not outdated in the digital era. If anything, the advent of file-trading services confirms the Framers' wisdom -- and underscores the continuing importance of a system of property rights that protects and encourages creativity and innovation.
Mr. Olson, former solicitor general, represents the Recording Industry Association of America and the Motion Picture Association of America, Inc., and filed a brief in the Grokster case on behalf of Defenders of Property Rights.
