Intellectual-Property Law Deserves More Respect
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The Supreme Court hears oral arguments today in MGM Studios v. Grokster. The business press has labeled it the most important copyright case in two decades, part of a simmering war between intellectual property owners (particularly those who own recorded music and motion pictures) and the technology sector.
Amazon, eBay, the IAC companies, and others can legally match specialized wants of individuals scattered around the world with millions of commercial providers. But file-sharing services such as Grokster operate in a parallel universe distinguished primarily by the absence of money changing hands.
The basic facts of the case are not in dispute. Making unauthorized copies of copyrighted works is unlawful. The motion-picture and music-recording industries have pursued enforcement actions against individual violators, but there are millions of such individuals in America alone.
More efficient, the content providers argue, would be holding liable the software companies that facilitate unlawful copying. Thus, the content providers sued Grokster. It offers file-sharing services that can be used for the sharing of files lawfully in the public domain, as well as those that are not. The legal argument is akin to holding gun manufacturers liable for crimes committed by users.
The 9th Circuit Court of Appeals found that Grokster itself did not violate copyright law. The case is on appeal to the Supreme Court.
Many legal scholars believe that the Supreme Court, like the 9th Circuit, will apply the standard from the case of Sony Betamax. In this case, two decades ago, the Supreme Court held that government cannot limit new technologies that can be used for some legitimate purposes regardless of the threat technology poses to intellectual property. Grokster and other file-sharing services likely meet this standard.
These file-sharing services are unfamiliar to the justices and their children but perhaps all too familiar to their grandchildren. While their parents perfect the boundaries of copyright law, many children are perfectly content to copy works with impunity – and a clear conscience.
Ask any high school or college kid in America about file sharing. Either that student, or a friend, will be able to offer access to practically any electronic file – music, video, video game, or software – at little or no cost.
The student might even direct you to www.grokster.com or to another such service, where you can learn how to download free or inexpensive file-sharing software. Soon, you, too, can be sharing files.
Many American youngsters do not disdain property generally, only intellectual property. An individual morally indignant at shoplifting or trespassing on neighbors’ property might see nothing wrong with sharing electronic files of copyrighted work. The former is seen as theft or invasion of legitimate property; the latter is seen as sharing what belongs to everyone.
For American students, anti-intellectual property sentiment is not just a matter of personal convenience but also a means of sharing the intellectual views of their professors. Some leading academics are openly skeptical of the value of intellectual property rights and argue that less protection should be provided.
Some academics even argue that intellectual property rights stifle innovation. It is an interesting hypothesis easily tested with evidence from around the world. Results appear to be exactly the opposite. More innovation occurs in countries with intellectual property protection than in others.
Thieves are not worried about fuzzy boundaries of property law. A few years ago, the government effectively shut down Napster, which used earlier file sharing technology. Unlawful file sharing, however, did not stop. It merely shifted to other providers.
No one doubts that, whatever the Supreme Court decides, illegal file sharing will go unabated with new Web sites in America and around the world.
We need to teach our children that this form of theft is wrong. Many kids see nothing wrong with taking drugs and stealing music files, yet would not throw wrappers on the ground nor cans in the wrong recycling bin.
American intellectual property law suffers neither from weakness nor vagueness. It merely suffers from lack of respect. Until we perceive that our economic well-being rests on the rule of law, no less in intellectual property than other areas, we will bear the burden of limited intellectual property and constrained economic growth.
A former FCC commissioner,Mr. Furchtgott-Roth is president of Furchtgott-Roth Economic Enterprises. He can be reached at hfr@furchtgott-roth.com.