An NYT editorial this morning stands up for the little guy. That's not unusual, and it's often something I admire about the Times. But this glosses over many of the deeper issues.

When David Steals Goliath's Music

The battle over online music piracy is usually presented as David versus Goliath: the poor student in his dorm hunted down by a music conglomerate. It is easy, in that matchup, to side with the student. But when the Supreme Court takes up the issue this week, we hope it considers another party to the dispute: individual creators of music, movies and books, who need to keep getting paid if they are going to keep creating. If their work is suddenly made "free," all of society is likely to suffer.

Really? All of society suffers? Musicians will stop creating music if they don't get paid? Surely if we decide to permit file sharing, there will need to be adjustments in the economy of the entertainment industry. But will it go away? Will we all suffer? I don't think so.

The court hears arguments tomorrow in a suit by music and movie companies against Grokster, which makes "peer to peer" software that allows Internet users to exchange songs and other computer files. At least 90 percent of the material "shared" on Grokster, and perhaps more, is copyrighted. Grokster gives away the software, but it sells advertising aimed at the millions of people who use it.

Yes, and most of the movies I watch, some of the music I listen to, and books I read also place advertisements in the "works of art." The distributors expect me to pay for it it on top of all that. Grokster does make money off file sharing; record, movie, and publishing companies make money off the "products" themselves. The creators frequently see very little of the profits. Is this part of the current system we want to preserve?

Many big entertainment companies are backing the suit, along with marquee-name musicians like the Eagles and the Dixie Chicks. But so are some creative professionals - represented by groups like the Authors Guild and the Professional Photographers of America - for whom even a few thousand dollars in royalties makes a big difference.

Of course, the greedy multi-millionaire rockstars, who charge over $100 to get into their concerts, aren't exactly great spokespersons for the little guy "for whom even a few thousand dollars in royalties makes a big difference." But we don't need to (and shouldn't) ignore the struggling artists. Let's note that file sharing does not necessarily abolish or even diminish record sales: in fact both the amount of file sharing and record sales went up last year. There are alternative ways for struggling songwriters (and other artists) to get rich off their products (if that is their goal) or even to make a decent living. In the face of new technologies, we should be talking about creative adjustments to the economy that will encourage and reward creativity--and do so in ways that don't primarily make the rich richer while subverting the social benefits of sharing and appreciating good art. We might ask the big entertainment companies to better share the profits, for example.

The technology community has rallied to Grokster's defense. Its most radical members argue that "information wants to be free" online and disparage the whole idea of intellectual property. A more modest argument, and one Grokster relies on in court, is that if it loses, there will be a chilling effect on technological innovation.
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The founders wrote copyright protections into the Constitution because they believed that they were necessary for progress. Movies, music and books require investments of money and time. If their creators cannot make money from them, many will be unwilling or unable to keep producing. Or they may have to finance their work in troubling ways, like by building in product placements or taking money from donors with agendas.

Grokster's supporters are justified in worrying that if the courts are too quick to rein in new technology, innovation can be stifled. They are also right to point out that copyright has sometimes been given too much protection, notably in the Copyright Term Extension Act, which gratuitously added 20 years to existing copyrights. But these concerns do not erase the continuing importance of intellectual property, which is unquestionably under assault.

Both the court and Congress should be sensitive to evolving technologies. But they should not let technology evolve in a way that deprives people who create of the ability to be paid for their work."